Neutral Citation Number:
[2013] EWCA Crim 85
Case No:
201106750 D4
201106720 D4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIGH COURT QUEEN’S BENCH DIVISION
HIS HONOUR JUDGE MURPHY
T20110275
T20110234
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
13/02/2013
Before :
LORD JUSTICE RIX
MR JUSTICE MACKAY
and
MR JUSTICE UNDERHILL
- - - - - - - - - - - - - - - - - - - - -
Between :
Regina
Respondent
- and -
Mia Moore
and
Ben Peter Burrows
Appellants
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
R Carey-Hughes QC and D Lawler
(instructed by
Foxes Solicitors
) for the
1
st
Appellant
S A Rodham
(instructed by
Goldkorns Solicitors
) for the
2
nd
Appellant
R Whittam QC and T Hunter
(instructed by
CPS Special Crime Appeal Unit
) for the
Respondent
Hearing dates : Thursday 13
th
December 2012
Judgment
Lord Justice Rix :
1.
This appeal is about the issue of entrapment. It is submitted on behalf of the appellants that they were entrapped by undercover police officers into supplying cocaine. Their two cases are very different. Mia Moore was charged with six counts of supplying cocaine (in amounts of one ounce), two counts of being concerned in the supply of cocaine (again in amounts of one ounce), 2 counts of handling stolen goods, and one count of delivering counterfeit £10 notes. The offences took place over a period beginning on 8 September 2010 (the first of the supplies of cocaine) and ending on 28 February 2011 (the counterfeit notes). Ben Burrows, however, was simply caught up in one of the supplies of cocaine, that of 11 February 2011, because he happened to be with Mia Moore that day, went with her to fetch the drugs and actually handed the drugs over (while Ms Moore was in the bath) to the police officer. So he was charged with supply (the only count against him) and she was charged with being concerned in supplying on that occasion.
2.
Both appellants applied at trial to have the indictments against them stayed for abuse of process on the ground of entrapment. Mr Burrows’ case is entirely dependent upon Ms Moore’s. Ms Moore’s case is premised on the role played by the undercover police officers in supplying her with cheap goods from whose on-sale she could profit. It is submitted that, although she was not a target of the undercover operation and was not suspected of any relevant offending, she had been groomed into a situation of dependence on such cheap goods; that she was poor and vulnerable, and it was in this context that one of the undercover police officers first asked her about where he could obtain cocaine. That was the vital first question, from which all else followed. It is submitted that in this context she was “lured” into the commission of crime in the sense described by the leading authority of
R v. Looseley
,
Attorney-General’s Reference (No 3 of 2000)
[2000] UKHL 53
,
[2001] 1 WLR 2060
.
3.
Following the failure of their applications, Ms Moore and Mr Burrows pleaded guilty on re-arraignment on 28 October 2011 at the Crown Court at Blackfriars. She was sentenced on 13 December 2011 by HHJ Murphy to a total of 4 years 8 months imprisonment: 4 years in respect of each of the drug offences, 10 months concurrent in respect of each of the handling offences, and 8 months consecutive in respect of the counterfeit notes offence. He was sentenced on 23 January 2012 by the same judge to 12 months’ imprisonment suspended for 2 years, with a requirement to carry out 180 hours of unpaid work in the first year. Both appeal against conviction with the limited leave of the single judge.
4.
The application to stay for abuse of process had three limbs to it: there was a complaint that disclosure about the authorisation of the undercover operation was inadequate; there was a complaint that the operation was unauthorised and unlawful; and there was a complaint of entrapment. All three limbs of the application failed. The judge decided that there was a legitimate public interest immunity preventing full disclosure, but that there was nothing which he had reviewed that would in any way assist the defence case or undermine the Crown’s case, either in relation to the application to stay or generally. However, the court would make an assumption on behalf of the defendants that the undercover operation involved the supply of cheap goods on a very large scale, at any rate in the global sense rather than in relation to any particular individual.
5.
As for authorisation of the undercover operation, the judge ruled that in essence it was properly authorised, but that the tactic of infiltrating the locality under investigation by means of a pretence of criminal participation by the undercover police officers in the handling and supply of stolen goods (the so-called “building the legend”) had not been lawfully authorised in advance, but had nevertheless been properly supervised and monitored in progress. Therefore, the failure to authorise in advance, although regrettable, was not of great significance and was not dispositive of the application to stay.
6.
As for the allegation of entrapment, the judge ruled that there was no abuse. Unfortunately, the tape recording of the judge’s ruling malfunctioned at this point, so that his reasons have to be gauged from some scanty notes. The skeleton served on behalf of Ms Moore seeks to reconstitute those notes to this effect: the key question for the judge related to what was said on 2 September 2010 when talk of drugs first arose (see below, for a verbatim citation of that conversation), and was whether the undercover police officer’s question “You might be able to help me. Does anyone round here got any [cocaine]?” amounted to state-sponsored crime. It did not, but Ms Moore freely took advantage of the opportunity offered and there was no incitement of the offence which later took place. It is submitted on behalf of Ms Moore that the judge’s key question was an over-simplification of the learning of
Looseley
, and that the judge failed to take adequate account of what had gone before in terms of “grooming”, viz the supply of cheap goods which “acted as a powerful inducement upon Mia Moore such that she would do anything to keep them happy”.
7.
There were five accused, each of whom applied to stay their respective proceedings. The applications were heard prior to trial. In each case it was understood that, should the application fail, the accused would plead guilty. The applications made on behalf of two of the accused were abandoned. Three applications were heard, and refused. There were lengthy submissions, but no
voir dire
. One of the accused has not appealed.
8.
The present appellants originally requested an appeal on three grounds: one related to discovery, a second related to illegality of the operation, the third related to entrapment. Leave to appeal has been granted only in relation to entrapment, and there has been no attempt to renew the application for leave to appeal in respect of the first two grounds. Nevertheless, it is submitted that the entrapment ground has to be considered in the light of the question of illegality. If so, that can only be, in our judgment, on the basis of the judge’s findings with respect to that issue. Mr Carey-Hughes QC who is instructed with Mr Lawler on this appeal on behalf of Ms Moore, did not appear for her at trial.
The authorising and supervisory documents
9.
In October 2009 the police were concerned at the prevalence of drugs and firearms offences conducted by organised criminal networks in the London Borough of Greenwich, particularly in the Abbeywood area. They therefore commenced an undercover operation known as Operation Bintan (and latterly as Operation Trazer). Undercover officers established themselves in the local community as criminals. They offered large quantities of goods for sale at very cheap prices, with the implication that the goods were stolen. This was described as “building a legend”, ie a cover story in the community.
10.
The authority for the operation was signed off on 1 October 2009 by Commander Peter Spindler. It was to last for one year until 30 September 2009. Commander Spindler stated that he was satisfied that the operation “concerns a long term infiltration in respect of a wide range of major criminality, namely the supply and distribution of Class A Drugs, Firearms and other organised crime conducted by means of an investigation into subjects [redacted]…and or there [sic] associates who are members of organised criminal networks.” The authority authorised undercover officers “to establish, develop and maintain a relationship with the subjects [redacted] or any of their criminal associate(s) for the covert purpose of gathering intelligence and/or evidence in relation to their involvement in the illegal supply/distribution of firearms, Class A drugs, and organised crime, as detailed within the application report.” It also authorised undercover officers “to participate in crime to the extent of entering into an existing criminal conspiracy to supply/distribute firearms, class A drugs, and organised crime.” Commander Spindler noted that “the desired result of the authorisation cannot reasonably be achieved by less intrusive means” and that “the risk of collateral intrusion has been properly considered”. Authority was granted for the rental of residential premises by the undercover officers, and for the release of £5,000 in funds. Any purchases were to be “corroborated and evidenced”, and £2,000 was authorised for such purposes for the moment. The authority stated: “If there is further use and conduct of the undercover officer outside of that already authorised or there is a significant development requiring additional authority, a further update report is to be submitted immediately.” It continued: “There must be a continued assessment of a likely degree of intrusion into the privacy of those potentially affected to ensure that it remains proportionate to what the undercover officer seeks to achieve. The likely collateral intrusion into the privacy of persons, other than those directly implicated, or any adverse impact on community confidence must be constantly reviewed.”
11.
There was nothing in that authority explicitly describing the use of cheap goods to support the undercover officers’ cover within the local community.
12.
However, that authority was granted in part on the basis of an “Analytical Strategy” and “RIPA Application” dated 28 September 2009 which stated: “UCO’s ‘conduct & intention’ key – MUST be accepted in area – VERY difficult – Good cover story/legend key issue.” A further such document dated 5 October 2009 stated “UCO’s given instructions…‘join’ community in Abbeywood area, source accommodation, source ‘business’ premises, enquire availability of (in area) a) drugs b) firearms c) stolen goods…Tactic now authorised, need to appear to be in the community full time, strategy agreed/authorised.” Yet another such document also dated 5 October 2009 stated as having been “Discussed and understood”:
“Any goods offered/given/sold to locals will only be to further the ‘cover stories’ & maintain credibility of UCO’s. The sale/supply of such goods must
NOT
act as A.P. [Agent Provocateur] & expectation is that subjects will have shown some element of predisposition directly/indirectly with criminality subject of operation.”
13.
A still further such document of the same date referred to
Looseley
and continued: “(1) Establish intel re subject/premises → predisposition (however emerges), (2) offer unexceptional opportunity to subject → ie ‘POSE’ as drug dealer/handler etc, (3) evidence extent of criminality → no forcing them to so something that they wouldn’t normally do (ie not AP)…Only tempt those predisposed.”
14.
It seems reasonable to regard the first of such documents as the basis for Commander Spindler’s authority and the later two documents as a “further update report” in terms of that authority.
15.
A further authority was signed off by Commander Spindler on 29 September 2010 for another year. This repeated the essence of the first authority. It began by referring to the “application and supervisory comments of DCI McDonald and Detective Superintendent Haplin”, which would appear to include the material cited above.
16.
It was in the light of these documents that the judge ruled as follows:
“Firstly, the conduct…was not covered by the authorisations and was to that extent, and to that extent only, unlawful. In my judgment it should have been covered and the failure to do so was an error of judgment on the part of the authorising officer although to some extent understandable because there was a general covering of criminal activity and there was clearly in my judgment an awareness on the part of all concerned [of] what the activities were going to be so there was no substantial dereliction there…the officers’ conduct was properly controlled and monitored at all times and therefore I do not consider the…failure, regrettable as it was, to be of particularly great significance in the outcome of the applications.”
The judge then referred to
R v. Harmes and Crane
[2006] EWCA Crim 928
where this court similarly did not consider that (as he described it) “whatever technical failures there might have been in the authorisations” were dispositive.
17.
The single judge, Mr Justice Edwards-Stuart, said “I am not persuaded by the points about the legality of the operation in general terms or the need for the additional disclosure” and refused leave to appeal with respect to the first two grounds of appeal proposed which were in these terms: “(i) Lack of disclosure prevented full and comprehensive submissions being made on behalf of the applicant; (ii) The learned judge failed to attach proper weight to the proven breaches of the CHIS Code of Practice when considering submissions made on behalf of the applicant”.
18.
As stated above, the appellants are bound by their limited leave to appeal. They are therefore bound by the judge’s judgment that the breaches of the Code in failing specifically to authorise the use by the undercover officers of the supply of cheap goods to build their cover and to assist them in their infiltration of the locals was, in the circumstances of its supervision, merely technical. We would comment that the supply of cheap goods, apparently stolen, may have had an element of subterfuge to it, but it was not itself criminal, for the goods were not stolen. The purchase of the cocaine (or the goods and counterfeit notes involved in the other counts) was criminal, but was properly authorised. Moreover, at any rate by the time of the renewal of Commander Spindler’s authority for the second year of the operation (covering the period into which most of the offences fall), it is plain from the documents cited above that he continued to authorise the operation with a complete understanding of the means adopted by the undercover officers to build their cover as drug dealers and handlers, including the offering of goods.
The facts in relation to Ms Moore
19.
Ms Moore was 26 years old at the time of sentence. We are told that she had three prior convictions, but she was not an authorised target nor was she suspected of dealing in drugs. She was, however, related to a father and a step-father who, at any rate for the purpose of the argument, were regarded as or at least suspected of doing so. Her step-father was Gary Reed, a local criminal. It was he who introduced Ms Moore to the undercover officers. He did so with the request that they help her to “make herself a few quid” from mobile phones they were supplying. That was on 22 June 2010, in a telephone call. He mentioned her name and said that she would contact them, which she did. This led to a telephone conversation between undercover officer “Jason” and Ms Moore on 19 July 2010 in which he mentioned goods he had for sale. On 20 July Ms Moore texted Jason to ask to meet, which they did on 21 July 2010. Ms Moore then made her first purchase, of two sleeves of cigarettes for £30.
20.
On 4 August 2010 she texted Jason for some more supply. The matter hung fire for some time, but on 2 September 2010 Ms Moore and Jason met again (at her home) so that Jason could deliver a further two sleeves of cigarettes and two bottles of sparkling wine, for £32. That was her second purchase and the crucial occasion on which drugs were first discussed. The facts we relate are taken from the evidence recorded by the undercover officers.
21.
After that transaction, the following conversation took place:
“Jason: You might be able to help me. Does anyone round here got any [inaudible,
scilicet
cocaine].
Moore: Yeah I can get it, in big bits for ya.
Jason: In big bits?
Moore: Yeah, at thirteen hundred pound. But it’s none of that, it’s none of that shit.
Jason: How much notice do you need for that?
Moore: What for that? That’s an ounce, I can get that on the ounce.
…Maybe a day…
Jason: Yeah just one [ounce].
Moore: Yeah I can do it [inaudible]. I tell you what I will do, I will call him and get back to ya. I just keep in touch.”
22.
On behalf of Ms Moore, Mr Carey-Hughes QC submitted that Jason’s question to Ms Moore (“Does anyone round here got any [cocaine]?”) was the single critical fact of this history. It was a request for a favour, posed in the light of the two supply deals which Jason had passed her way, which Mr Carey-Hughes described as “grooming”. He submitted that Jason’s question was illegitimate. It was the crossing of the Rubicon. Everything depended on that first question (and her answer). It would have been entirely different if Ms Moore had been the first to offer drugs: then there could be no complaint.
23.
It may, however, be observed how immediately and directly Ms Moore responded to what was, after all, a general enquiry about “anyone round here?” She straightway volunteered that
she
could get it, in “big bits”, of good quality (“none of that shit”), at £1300 per ounce, on a day’s notice. It is apparent that Ms Moore had complete confidence in her ability to supply.
24.
This was, as it turned out, because Ms Moore had her own father, Graham Moore, in mind as her supplier. She provided Jason with her father’s telephone number so that the two could negotiate directly with one another (“because there is other stuff (inaudible) you can battle along between ya”). (Jason called her father. In due course Jason and Graham Moore were to do drug deals of their own, beyond those which led to the charges against Ms Moore, and in respect of which Moore has been separately indicted.) Graham Moore lived in Bournemouth, but Ms Moore offered to collect the drugs. Jason said: “Oh alright, you alright doing that though, you sure?”; to which Ms Moore replied: “Yeah, yeah it’s no problem, it’s cool.” Later that same day there was a telephone conversation between Ms Moore and Jason. It transpires from that, that Jason and Graham Moore agreed £900 for an ounce of cocaine and also discussed “bigger and better business”. It was arranged that Graham Moore would get the cocaine to Ms Moore and she would get it to Jason. He was to pay her the £900 up front. Jason asked her: “But, only if that is alright with you girl? That’s the only thing.” She said “Yeah, that’s no problem. A little later he asked again: “Is that alright then yeah?” She said: “Yeah that’s fine that’s cool.” In all Jason asked five times if she was happy with her role, and she confirmed she was.
25.
On 3 September 2010 Ms Moore made her first supply to undercover officer “Nat” (Jason’s colleague) of an ounce (25.9 grams) of cocaine. Nat asked: “Did you get a drink for this?” Ms Moore replied: “Nah, it’s alright don’t worry I will sort something out with Jason.” Nat said: “Are you sure, if you want anything, any kind of phones or anything stuff he has.” Ms Moore said: “Yeah that’s what I mean. I talk to him during the week. Definitely yeah, keeps him happy that’s cool.” Mr Carey-Hughes submits that it is possible to see in this conversation the symbiotic relationship between the supply of cocaine and the desire to obtain cheap stock from the undercover officers.
26.
On 5 September 2010 there was a conversation between Ms Moore and Jason about her step-father Gary Reed. She said that she was concerned about him undercutting her, saying “I know exactly what he is trying to do, trying to overcut and undercut me. I know what he is like. (Inaudible) He doesn’t know where I get my stuff is completely different to him.” Later still on 5 September she met Nat to see some phones that were for sale. Nat gave her a Blackberry as her “drink” in relation to the initial trade. She asked him “What did you think of that stuff?” Nat told her it was excellent and asked if there was any chance of some more. She said: “Just let me know which [day] a day before and I will go and get it.” She dissuaded Nat’s offer to go and fetch the cocaine himself, saying she would fetch it like the last time, “instead of dragging you along with me”.
On behalf of the Crown, Mr Richard Whittam QC submitted that these conversations showed Ms Moore trying to maintain her role in the supply independent of both her step-father and her father.
27.
On 8 September 2010 Ms Moore supplied the second ounce of cocaine (26.3 grams) to Nat. He again suggested he would deal directly with her supplier: “The other thing, I am thinking about going directly to the guy to make it easier for you.” On this occasion she agreed, saying that she had spoken to him, ie her father, herself, and “well he said the same thing to me”. Jason contacted Ms Moore not long later to confirm his direct dealing: “…I will deal direct with him and then you don’t have to start running around”.
28.
On 17 September 2010 Jason and Nat met Ms Moore to sell her four sleeves of cigarettes, two handbags and a set of sunglasses, for £95, for which she was given credit. She paid the £95 off on 5 October 2010, on which occasion she received further stock on credit (five blocks of cigarettes, t-shirts and bags). In the meantime there were conversations about the money she owed, but she was told not to worry.
29.
The third supply of cocaine occurred on 12 November 2010, but the deal was initiated on 4 November when Jason and Nat met Ms Moore to collect the money she owed and to drop off some samples of stock. Ms Moore told them that she had lost her job (she had been working for her father), and paid £40 on account of what she owed. At that stage she had made two supplies and then the undercover officers had removed her from the subsequent offences involving her father. Now she initiated further cocaine trades, asking if they were still happy dealing with Graham. Jason asked why she asked, and she said “Cos there is other stuff coming about as well…But it won’t be off him, from someone else…From one of my friends, local, more local.” She was asked whether her supplier was “Gary’s people”, with whom Jason said he had been doing “a couple of bits”, but she said no but was not more specific. She said “we will look at it and go from there”. Jason told her to go ahead. On 9 November she texted Jason, without any prompting, to say she had news “on the other”. On 11 November they met up. Jason provided her with two handbags and two mobile phones. He asked about the “bits and bobs” and was told “good to go when you ready to go”. The price agreed was £900. On 12 November Jason collected the third ounce of cocaine (27.8 grams) from Ms Moore at her home.
30.
On 24 November 2010 Jason contacted Ms Moore to order a fourth supply. The next day Jason collected it from her home. At the same meeting Ms Moore paid £30 for the phones he had given her and returned the handbags. Jason showed her some cosmetic items and left her with £39 worth of them.
31.
On 8 December 2010 Jason contacted Ms Moore to ask how she had got on with selling the cosmetics she had taken, and she said she had the money. She offered to leave it at her mother’s, but was told there was no rush.
32.
On 21 December 2010 there was another conversation between Ms Moore and Jason about stock. Ms Moore then turned to offer cocaine from yet another supplier. She said “You after more thing as well?…Probably someone else if you want…Come with me and have a look.” Later she put a phone call through to arrange the deal, and on 22 December she supplied a further ounce (28 grams), the fifth deal.
33.
On 10 January 2011 the sixth supply of an ounce (27.9 grams) of cocaine took place, at the request of Jason. There was also a discussion about the possibility of Jason having cigarettes to sell.
34.
On 14 January 2011 Jason went with Ms Moore to see some clothes which she had offered to sell to him. This had been discussed a few days earlier, when it was obvious from the prices proposed by Ms Moore that the goods were stolen. Jason bought the clothes, and this constituted the first of the two handling counts on the indictment. Ms Moore was given a pair of jeans as a reward by a third person involved in the sale. On 17 January there was a further purchase by Jason of more clothes. Jason had attempted to complete this transaction without Ms Moore, and he offered her a “drink” to reassure her that she did not need to attend the purchase. However, Ms Moore made her own way to the trade and involved herself in another offence (the second handling offence on the indictment).
35.
On 24 and 25 January 2011 Ms Moore asked Jason about cigarettes. On 26 January Jason telephoned to say he had cigarettes in stock but needed payment up front. As a result no deal seems to have happened.
36.
On 8 February 2011 Ms Moore texted Jason to ask about “goodies” and to say she could do “the other”.
37.
On 9 February 2011 Jason contacted Ms Moore about cigarettes and went to her flat to give them to her. She said she had no work at the moment. Jason gave her the cigarettes on credit and said there were more when she paid. There was a discussion about drugs in which Ms Moore said “I’ve been doing quite a few of them”; Jason replied “Yeah, you’re getting a bit busy round it them”; and Ms Moore responded “Yeah, it’s been good”. Jason asked if it was “with the same fellow, is it?” and Ms Moore said it was. Ms Moore offered to bring him round to meet Jason. She also raised the possibility of selling him more clothes.
38.
On 11 February 2011 Jason telephoned Ms Moore to order an ounce of cocaine. He delivered her the money and later in the day returned to her flat to pick up the cocaine (26.9 grams). This was the day when Mr Burrows happened to be with Ms Moore when she went to collect the drugs. He went with her. When Jason returned for the drugs, Ms Moore was in the bath and so it was Mr Burrows who supplied the drugs to Jason. It was for that reason that this count was charged against Ms Moore as being concerned in supplying.
39.
On 23 February 2011 Jason texted Ms Moore to say he had more cigarettes, but she said she had no money: “I’m fucked, I ain’t got no credit on my phone”. She said she would get him the money she owed him.
40.
On 24 February 2011 Jason spoke to Ms Moore to arrange the purchase of an eighth ounce of cocaine. He went to her flat and there met a man called Dan. The relevant recordings of this meeting are not exhibited. It seems from Jason’s statement that the conversation took place directly between Jason and Dan. Dan enquired if Jason would also be interested in purchasing forged £10 notes. Jason asked for his telephone number, but was told to “go through Mia”. The cocaine was supplied on 27 February (28.3 grams), but Ms Moore was not charged with supplying but with “being concerned in supplying”, ie bringing Jason and Dan together for the deal. On 28 February Jason took delivery of ten counterfeit £10 notes from Ms Moore (count 11). They compared the notes with a real £10 note and Jason discussed with her the possibility of taking the full £2000 offered. On 1 March 2011 Jason bought more counterfeit notes directly from Dan, at Ms Moore’s flat. Dan said he owed her a drink. On leaving, Jason told Ms Moore that he would forgo the £60 she still owed him.
41.
On 10 March 2011 Ms Moore was arrested.
42.
When Ms Moore came to plead guilty, having failed in her application to stay the proceedings, she did so on a basis of plea which was accepted by the judge. It included the following matters: that she had never previously been involved in the sale of drugs; that she was aware that her father, Graham Moore, could supply class A drugs; that she never made any profit from the sale of the cocaine; and that at all times she acted as “go-between” between the supplier and the undercover officers. The judge sentenced her as a “facilitator” in relation to the supply of the drugs.
43.
It is understandable that the judge accepted that basis of plea, although it came of course after the judge had made his ruling on the stay application. On the history of events we have outlined above, Ms Moore gave every appearance of being entirely familiar with the culture of cocaine drug supply, and she lent herself readily to the sourcing and supply of eight ounces of cocaine for Jason, apparently from several suppliers: but she did not appear to be a principal so far as the price was concerned, and she seems to have been rewarded in various ways as the facilitator of the deals, as appears also to have been the case where the handling of the clothes and the delivery of the counterfeit notes were concerned. She seemed short of funds and it would seem that the opportunity to profit from the supply of cheap goods was of interest to her.
44.
Although it was common ground that the undercover officers operated their supply of goods in the locality on a large scale, it does not appear that Ms Moore herself bought all that much off them over the period of about nine months with which we are concerned. In particular there were only two sales prior to the first discussion about drugs, one of cigarettes for £30 (on 21 July 2010) and the other of cigarettes and sparkling wine for £32 pounds (on 2 September 2010). After that there were further supplies of various goods: more cigarettes, two handbags and a pair of sunglasses, for £95 (on 17 September 2010), cigarettes, t-shirts and bags on 5 October 2010 (query the price, but Ms Moore paid £40 on account at a later date), two more bags and two mobile phones on 11 November 2010 (she later paid £30 for the phones and returned the bags), cosmetics for £39 on 25 November 2011, and four sleeves of cigarettes on 9 February 2011.
The law
45.
As stated above, the leading case is
Looseley
, which was heard together with
Attorney General’s Reference (No 3 of 2000
). In
Looseley
the undercover officers were authorised in an operation which focussed on a public house where drug dealings were suspected. There the defendant’s name was supplied to an officer as a potential source of drugs. The officer phoned the defendant, who supplied him with drugs, as he did on two further occasions. At trial a
voir dire
was held, but the application to stay for abuse of process was refused. That refusal was upheld in both this court and the House of Lords. In the
Attorney-General’s Reference
, however, undercover officers who offered contraband cigarettes for sale at a housing estate were introduced to the defendant as a potential buyer. They sold cigarettes at a cheap price and asked him if he could get them some heroin. At first the defendant said he could not get heroin and that he was “not into heroin”, but he eventually agreed to try to assist them. He later took the officers to a heroin supplier from whom he obtained heroin and supplied the officers in return for £475. He was arrested. When interviewed he said that he had never had anything to do with heroin before and that he only did so because the officers had supplied him with cheap cigarettes and he was doing them “a favour for a favour”. The matter was dealt with by the judge on the basis of statements which he was invited to accept as true. The judge stayed the proceedings, but there was a reference which raised a general question about whether the discretion to exclude evidence under section 78 of PACE 1978, or the power to stay proceedings for abuse of process, had been modified by article 6 of the ECHR. The court of appeal said it had not, and the House of Lords agreed: but this court also said that the judge had been wrong to stay the proceedings, whereas the House of Lords disagreed. Lord Nicholls did not deal with the actual decisions in the two cases, as distinct from matters of principle, but he said that he agreed with Lords Hoffmann and Lord Hutton, as did Lord Mackay.
46.
Lord Hoffmann said (at para [81]):
“He was induced to procure heroin for the undercover officer by the prospect of a profitable trade in smuggled cigarettes. The judge was entitled to take the view that, even if this was an authorised operation, the police had caused him to commit an offence which he would not otherwise have committed.”
47.
Lord Hutton spoke to similar effect (at para [116]). He continued:
“Therefore the officers did more than give him the opportunity to commit the offence of supplying heroin – they instigated the offence because they offered him inducements that would not ordinarily be associated with the commission of such an offence.”
Lord Hutton had previously cited the trial judge’s finding (at para [94]):
“An elaboration of those facts by Mr Munt on behalf of the defence, admitted facts, makes it absolutely clear to me that in this case these officers went further than was permissible and in fact incited and procured this defendant to commit an offence he would not otherwise have committed.”
48.
Lord Scott, however, rather thought the judge had been wrong in his decision. He said (at para [127]):
“The inducements offered to the accused in order to persuade him to supply heroin do not seem to me to correspond with what would be necessary to cause the prosecution to be an affront to the public or to offend ordinary notions of fairness. This was, however, a matter for the discretion of the trial judge, and it may be that his value judgment was one that he was entitled to reach.”
49.
Whatever the position may be with respect to the discretion under section 78, however, it would seem that the assessment of a trial judge with respect to an allegation of abuse of process is ultimately one on which an appeal court is entitled to exercise its own judgment (see
R v. Harmes and Crane
at para [54],
per
Moses LJ). Nevertheless, as the House of Lords stressed in
Looseley
, the assessment to be applied on the basis of the principles laid down in that case is very much a fact sensitive matter. As Lord Hoffmann said (at para [48]):
“The theme which runs through all discussions of the subject is that the state should not instigate the commission of criminal offences in order to punish them. But what counts for this purpose as instigation? An examination of the authorities demonstrates, in my opinion, that one cannot isolate any single factor or devise any formula that will always produce the correct answer. One can certainly identify a cluster of relevant factors but in the end their relative weight and importance depends upon the particular facts of the case.”
In this connection, this court has more than once emphasised that it will not interfere with the trial judge’s assessment of the facts unless there is a serious error: see
R v. Chandler
[2002] EWCA Crim 3167
and
R v. Paulssen
[2003] EWCA Crim 3109
.
50.
The dominant theme, therefore, of
Looseley
is that a stay is granted, not for the sake of the defendant, who ex hypothesi has committed an offence, but in order to prevent the state acting as it ought not to act. As Lord Nicholls stated in his opening paragraph:
“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.”
It follows that the key question, if it is possible to isolate any such question, was expressed by Lord Nicholls as follows:
“25. 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. Lord Steyn’s formulation of a prosecution which would affront the public conscience is substantially to the same effect: see
R v Latif
[1996] 1 WLR 104
, 112…In applying these formulations the court has regard to all the circumstances of the case.”
51.
For these purposes, Lord Nicholls offered as a “useful guide” –
“to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word “unexceptional”. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances…The police did no more than others could be expected to do.”
52.
The various considerations discussed by their Lordships in
Loosely
have been helpfully analysed by reference to subsequent authority in an article by Professor David Ormerod,
Recent Developments in Entrapment
, [2006] Covert Policing Review 65. Professor Ormerod there identifies five factors as of particular relevance: (i) reasonable suspicion of criminal activity as a legitimate trigger for the police operation; (ii) authorisation and supervision of the operation as a legitimate control mechanism; (iii) necessity and proportionality of the means employed to police particular types of offence; (iv) the concepts of the “unexceptional opportunity” and causation; and (v) authentication of the evidence.
53.
As for factor (i), Professor Ormerod suggests that reference in the speeches in
Looseley
to reasonable grounds of suspicion, or the “reason” for the operation, was a control mechanism for testing the police’s good faith, and for avoiding mere “virtue testing”, and could be regarded as a necessary trigger. Thus Lord Nicholls said (at para [27]) that “the police must act in good faith” and that “Having reasonable grounds for suspicion is one way good faith may be established”. He continued:
“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.”
Lord Hoffmann observed that the need for reasonable suspicion (and proper supervision) were both stressed in the Undercover Operations Code of Practice issued by all UK police authorities and HM Customs and Excise in response to the
Human Rights Act 1998
. He continued, picking up and elaborating on Lord Nicholls’ point:
“65. The requirement of reasonable suspicion does not necessarily mean that there must have been suspicion of the particular person who happens to have committed the offence. The police may, in the course of a bona fide investigation into suspected criminality, provide an opportunity for the commission of an offence which is taken by someone to whom no suspicion previously attached. This can happen when a decoy (human or inanimate) is used in the course of detection of crime which has been prevalent in a particular place…If the trick had been the individual enterprise of a policeman in an area where such crime was not suspected to be prevalent, it would have been an abuse of state power. It was justified because it was an authorised investigation into actual crime and the fact that the defendants may not have previously been suspected or even thought of offending was their hard luck.”
That was a qualification or elaboration on Lord Hoffmann’s previous remark at para [56] that –
“normally it is not considered a legitimate use of police power to provide people not suspected of being engaged in any criminal activity with the opportunity to commit crimes. The only proper participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which he is already engaged. It is not to tempt people to commit crimes in order to expose their bad character and punish them.”
54.
Professor Ormerod suggests that this qualification should not extend to “random virtue testing being used to target all residents of a high crime area” (at 73). In this connection, a question arises as to the relevance of a defendant’s “predisposition”. Their Lordships downplayed the test of predisposition (
cf
US and Strasbourg authority) even to the extent of Lord Hoffmann saying (at para [68]) that “Since the English doctrine assumes the defendant’s guilt and is concerned with the standards of behaviour of the law enforcement officers, predisposition is irrelevant to whether a stay should be granted or not”. Lord Nicholls said, perhaps more cautiously, that it is not “the criterion” by which the acceptability of police conduct is to be decided (at para [22]). Professor Ormerod, however, cites an article by Kate Hofmeyr in (2006) Crim LR 326 in support of the proposition that predisposition cannot be wholly irrelevant, since the “The real question behind the test enunciated by the House of Lords is counterfactual: would the accused have committed the crime without the involvement of the agent provocateur?” Professor Ormerod went on to cite
R v. Moon
[2004] EWCA Crim 2872
as supporting that proposition. That was a case where a woman undercover officer badgered a female addict persistently to obtain a single street supply of heroin, feigning withdrawal symptoms and distress, in circumstances where the defendant was able to say, by her evidence in a
voir dire
, that she had never been a supplier or a runner before or since. It was on the basis of those facts that
Moon
was distinguished in
R v. Jones
[2010] 2 Cr App R 10
by Leveson LJ at para [15].
Jones
concerned an undercover officer’s test purchases from a shop of cannabis-growing equipment, together with advice on growing cannabis, all under the pretence of the equipment and advice being for the growing of “tomatoes”. An application to stay for abuse of process was refused by the judge and an appeal was dismissed by this court.
55.
As for factor (ii), authorisation and supervision, the speeches in
Looseley
stressed the importance of proper control. This is relevant to the question whether the state has overstepped the mark of legitimate detection into the creation of crime. Thus Lord Hoffmann dealt with these considerations at paras [60]-[64] and, in discussing the Strasbourg case of (1998)
Texeira de Castro v. Portugal
28 EHRR 101, at paras [72]-[75]. At [60] he said:
“Closely linked to the question whether the police were creating or detecting crime is the supervision of their activities. To allow policemen or controlled informers to undertake entrapment activities unsupervised carries great danger, not merely that they will try to improve their performances in court, but of oppression, extortion and corruption. As we shall see, the European Court of Human Rights in
Texeira de Castro v Portugal
28 EHRR 101 attached great importance to the fact that the police were not acting in the course of an officially authorised investigation.”
56.
In this connection Professor Ormerod referred to
R v. Paulssen
[2003] EWCA Crim 3109
as a case where, in the context of a contract killing, this court was prepared to overlook what it described as “minor infractions of RIPA”: but also to
R v. Brett
[2005] EWCA Crim 983
and again to
Moon
where deliberate flouting of the authorisation process was acknowledged as a factor which might favour a finding of abuse of process. We have had cited to us the case of
Harmes and Crane
, where there was an undercover operation in which the defendants were offered soft drinks at cheap prices. The operation was centred on a public house which intelligence suggested was the source of large-scale distribution of class A drugs, and the defendants were targets of the operation. The undercover officers suggested that they were using the importation of soft drinks to disguise the importation of drugs. There was a supply of drinks for which the undercover officers requested payment of an ounce of cocaine. The effect of that exchange was to halve the price of the drinks. However, this exchange was the trigger for a disclosure by Harmes that he could import large quantities of cocaine every other day. That led to a “conspiracy” to import 200 kilos of cocaine.
57.
There was an application to stay the proceedings for abuse and a
voir dire
. The judge distinguished between the supply of an ounce of cocaine in payment for the drinks and the subsequent conspiracy. She stayed the indictment in relation to the former, but refused to do so in relation to the latter. There was authority for only “non-evidential purchases” of drugs, ie purchases not designed to lead to prosecution. However, the defendants had become involved in the conspiracy to import drugs willingly and out of a desire for large profits, not in the hope of more cheap drinks being supplied (at a time when such supply had long since ceased). There was an appeal in respect of that refusal to stay. The essence of the appeal was that the judge had underestimated the extent to which there had been breaches of RIPA and the Code of Practice. This court acknowledged that there had been serious breaches and “substantial defects in the process of authorisation” (see at paras [41]-[46] and especially [43]). In effect there was a complete absence of authorisation, or any relevant authorisation records, of the undercover officers’ modus operandi. Nevertheless, there was no illegitimate entrapment.
58.
Moses LJ said:
“51. We have already concluded that the officers’ conduct was criminal and it was not properly authorised. Nonetheless, we take the view that it should not be regarded as so seriously improper as to require the court to intervene to prevent the prosecution for conspiracy. It was conduct which merely exposed, for the purposes of the undercover operation, the undercover officers’ interest in drugs and eagerness to receive a small quantity. That was, in our judgment, no more than might be expected of any criminal willing to engage in illicit dealing in drugs.
Looseley
emphasised the importance of the analysis of the behaviour of the undercover officers in comparison with that which might bee expected of those committing criminal offences (see for example paragraph 55 of the speech of Lord Hoffmann in
Looseley
). Undercover officers, seeking to expose drug dealers, must show enthusiasm and a degree of persistence to provide protection for their undercover activities. As Lord Hoffmann accepts, a good deal of active behaviour may be acceptable (see paragraph 69).
52. In our judgment the conduct of the police officers was not exceptional and did not go beyond that which was necessary to show their willingness to deal in drugs. An exchange of a small amount of cocaine triggered the revelation that these defendants were not only happy to import very substantial quantities of cocaine but had the ability to do so. The officers’ activities pale into insignificance in comparison to the offers made by Harmes to import, on their behalf, large amounts of cocaine of a high value.”
59.
As for factor (iii), necessity and proportionality, a matter on which
Harmes and Crane
is again relevant, it was recognised in
Looseley
that justification may depend on the type of offence. In particular, consensual crimes which take place in secret, such as the supply of drugs, require undercover operations as an essential ingredient in the process of detection: see Lord Nicholls at para [26] and Lord Hoffmann at para [66].
60.
Factor (iv) concerns what Lord Nicholls called the “useful guide” of the provision of an “unexceptional opportunity”. Professor Ormerod raises the question of the extent to which this permits consideration of the subjective disposition of a defendant, as distinct from a concentration on the objective conduct of the hypothetical normal drug user (represented by the undercover officer). In this connection, he refers to Lord Hoffmann’s causation/opportunity distinction (see
Looseley
at paras [50]-[55]), as discussed in
R v. Hooper
[2002] EWCA Crim 621
. Did the undercover officer cause the crime or merely provide an opportunity to commit it with the officer rather than with someone else? Lord Hoffmann went on to say:
“55. The test of whether the enforcement officer behaved like an ordinary member of the public works well and is likely to be decisive in many cases of regulatory offences committed with ordinary members of the public, such as selling liquor in unlicensed quantities…But ordinary members of the public do not become involved in large scale drug dealing…The appropriate standards of behaviour are in such cases rather more problematic.”
61.
Professor Ormerod suggests that “causation alone
cannot
be the sole test. It is not a sophisticated enough test to deal with all the cases. It is however of great importance. Taking a drug deal as an example, but for the officer’s request D would not have committed the offence at that time and in that way. The police have caused the crime, but that cannot be a sufficient basis to say that there has been entrapment deserving a stay” (at 81). It might be relevant however if the police targeted a person known to be a mere user and not a dealer or runner (as in
Moon
).
62.
As to factor (v), authentication of the conversations and contacts, Professor Ormerod records that this was not discussed in
Looseley
, but was addressed in
R v. Chandler
[2002] EWCA Crim 91
in terms of the significance of the presence or absence of an unassailable record. The absence of such a record was regarded as important in
Moon
, where there was a conflict of evidence on the
voir dire
as to the circumstances of the offence.
63.
Finally, we have been referred to
R v. M
[2011] EWCA Crim 648
, where the judge granted a stay, but this was overturned on appeal by the Crown under
section 58
of the
Criminal Justice Act 2003
. A police undercover drugs operation was in progress in the North West of England in the course of which M had been targeted by an undercover officer. A “bond of trust and friendship had been cultivated”, and the officer had bought alcohol for M in shops from which M had been banned. The officer knew that M was an addict who would have sources of supply, but he had never been convicted of supplying drugs. He asked M where he could source some “white” in the town centre of Blackburn. M mentioned a dealer and the two telephoned him. M ordered a wrap of white and a wrap of brown for the officer: a car drove up, M obtained the wraps and handed them to the officer. This was the only deal in question. Counsel for both parties asked the judge to decide the application to stay after he had heard the police evidence, but the judge preferred to decide it on the papers.
64.
Stanley Burnton LJ said the issue was “whether [M] would have involved himself in this activity but for the request made by the officer” (at para [9]): ie appeared to test the matter by reference to a simple test of causation. He observed that M had not tried to inculcate the officer in the use of drugs until the occasion in question. For the Crown it was submitted that the officer had done no more than pose an open-ended question: he had not asked M to commit a crime and had only given him an opportunity to do so. For the Crown it was submitted that M was vulnerable to the unfair pressure of being tempted to move outside his usual way of life and to do a favour for a favour. Stanley Burnton LJ said that the absence of any pressure of persuasion on the part of the officer was particularly significant. In the circumstances, this court concluded that the real parallel was with the defendant in
Looseley
(rather than with the defendant in
Attorney General’s Reference (No 3 of 2000)
)
.
Stanley Burnton LJ reasoned as follows:
“18. In our judgment, there is no significant distinction between the assumed facts of the present case and the facts of
Looseley
. It is an inherent aspect of any undercover police operation that the undercover police officer insinuates himself into the confidence of those involved in the criminal conduct at which the operation is directed. For an officer who has so insinuated himself to offer an opportunity to a defendant to commit a criminal offence, in the absence of persuasion or pressure or the offer of a significant inducement, will not generally result in its being an abuse of the process to prosecute the person who takes that opportunity to commit an offence.
19. For these reasons it was not open to the judge to make a finding of entrapment on the assumed facts before him such as to render the prosecution of M an abuse of the process.
20. If, during the course of the evidence, facts (for example, that there was pressure put on M to supply the drugs in question) are established that go significantly beyond those on which the judge made his decision, it may be necessary to review our decision. It is for this reason that we consider that it would have been sensible for the judge to have followed the procedure suggested by counsel, that is for the issue of entrapment to be addressed after [the officer] had given evidence before the jury, with if necessary M giving evidence at that stage in the absence of the jury.”
Discussion
65.
It may be seen from the above jurisprudence and Professor Ormerod’s analysis that the present case lies intriguingly between the circumstances of previously decided cases. It shares certain elements of those cases, but ultimately stands on its own facts.
66.
Ms Moore partakes of certain features of the defendants in
Attorney General’s Reference (No 3 of 2000)
and
Moon
in as much as it could not be said that she had previously been involved in the supply of any drugs,
but there the similarity ends: for both of them, unlike Ms Moore, were addicts who were simply lured into a single supply, and only after some persuasion by the undercover officer concerned. In the present case, as in
M
,
Ms Moore needed no persuasion whatsoever, but on the contrary seemed to take to the multiple supply of reasonably large quantities of cocaine like a duck to water (facts which go well beyond
M
). In any event the jurisprudence tells us that we must rather concentrate on the nature of the police conduct rather than on the nature of the defendant’s predisposition. However, in many respects one is the other side of the other, for ultimately it is in the sense of proportion and fairness, in the question of whether the police overstepped some line so as to make their conduct unacceptable, that the solution lies. That is why Lord Nicholls cautions us (at para [28] of
Looseley
) that “regard is to be had to the defendant’s circumstances, including his vulnerability…this is a recognition that what may be a significant inducement to one person may not be so to another”.
67.
There are likewise factual similarities but also differences in the way in which the undercover operation in this case compared with the operations in
Attorney General’s Reference (No 3 of 2000)
,
Harmes and Crane
or
M
. There is, however, no similarity with the way in which the supply of cocaine was requested by the police in the latter case as the (hugely advantageous) price of the soft drinks sold by them.
68.
If we consider the five factors to which we have referred above, as highlighted in Professor Ormerod’s article on the basis of the jurisprudence in this area, we would observe the following. First, there was plainly a reasonable suspicion of drug dealing (and other criminality) in the Abbeywood area which justified the taking of covert policing operations. The fact that Ms Moore was herself not personally suspected in this context, nor a named target, is no doubt something to be taken into account: but, as Lord Nicholls observed, having grounds for suspicion of a particular person is not always essential, and as Lord Hoffmann remarked, the fact that individual defendants may not have previously been suspected or even thought of offending can occur and be their bad luck. Presumably that observation assumed the absence of other reasons for thinking that in an individual case there had been circumstances which would justify a conclusion that the police had unjustifiably created state sponsored crime.
69.
Secondly, there is the question of authorisation for and supervision of the police operation. In the present case, there clearly was both authorisation and supervision. It may be, as the judge found, that the authorisation was not immaculate, in that Commander Spindler’s authority document did not itself expressly refer to the tactic of using the sale of cheap goods to infiltrate the undercover officers into the local criminal community. Nevertheless, it is clear from the documents cited earlier in this judgment that Commander Spindler’s authority was signed off on the basis of the proposed use of some such tactic, and that the operation in this regard had been supervised. Purchases of drugs had been expressly authorised. It is true that the documents setting up the operation contemplated that the goods would be used for the purposes of the undercover officers’ “cover story” or “legend” and
not
for entrapment, let alone entrapment of those not suspected of being associated in criminality. That, however, begs the question in this case, which the judge at any rate answered adversely to Ms Moore, of whether there
had been
on the facts a crossing of the line into unjustified entrapment. On the judge’s findings as to authorisation and supervision, there was only a technical breach, and there is no ground of appeal to upset that conclusion, which we in any event consider that the judge was entitled to reach.
70.
Thirdly, there is the question of necessity and proportionality, where it is recognised that in the context of certain crimes, such as drug dealing, covert operations are a necessary element in detection. Drug dealing, especially where it concerns substantial criminal operations such as were under investigation in Operations Bintan and Trazer, is a serious crime which requires intelligence work and covert operations to police. Once an operation is underway, it will probably be inevitable that persons who had not previously been suspected will come to the attention of undercover officers. If such persons join themselves voluntarily to involvement in drug dealing, without being lured to do so, then, even if there had been no previous offending of such a kind, they may find it difficult, especially in the absence of giving any evidence on a
voir dire
themselves and without cross-examination of the undercover officers concerned, to persuade a court, the burden being on them, that they had been unjustifiably, disproportionately, or unfairly lured and set up to commit a crime which the police and not they had created. Moreover, it would seem to us to be justifiable and proportionate to use the supply of drugs by such persons as stepping-stones in the investigation of the existing criminal conspiracies to supply drugs which the undercover operation was tasked to detect.
71.
Fourthly, on the subject of the “unexceptional opportunity”, the question in this case is whether the undercover officers acted in the ordinary way of drug purchasers or used some exceptional manoeuvre to lure Ms Moore into offending. Lord Hoffmann was surely right to observe, if we may respectfully say so, that ordinary members of the public do not become involved in large scale drug dealing and that the appropriate standards of behaviour in such cases are problematic. In such circumstances there seems to us to be nothing inherently wrong with undercover officers posing as criminals (and thus not as ordinary members of the public) in order to stake their credentials in a locality which has come under justifiable suspicion. The fact that there is a necessary subterfuge does not mean that the boundary has been crossed into unjustifiable entrapment. In the case of Ms Moore, it has to be recalled that it was not the undercover officers who sought her out, but her own step-father, a local criminal whom Ms Moore herself described as a drug dealer, who introduced her to the officers. Ms Moore then initiated the contact. It is submitted that she was poor and vulnerable, that the goods supplied to her by the officers were so tempting that they caused her to forsake her previous innocence of drug dealing, acting as an unjustifiable lure, and to do so immediately the question of some help in contacting a source of supply was raised. In our judgment, however, the judge was entitled to conclude that her case of abuse had not been made out. Prior to the open-ended question posed by Jason (“Does anyone round here got any [cocaine]?”), there had only been two supplies of cheap goods by the officers, for £30 and £32. Ms Moore was then in work (even if she subsequently lost her job). Ms Moore was not lured, persuaded or wheedled into supplying substantial quantities of cocaine, an ounce at a time. She immediately volunteered: “Yeah I can get it, in big bits for ya”. She may not have done it as a principal, to secure the profit on the deal for herself: but we do not know what arrangement she made with her own father, Graham Moore, whom she used at first as her supplier, or with any other supplier to whom she turned once Jason had established his own direct dealing with the father. It is true that Ms Moore referred to her first supply of drugs on 3 September 2010 as something that “keeps him [Jason] happy”. However, it is perfectly plain that she involved herself willingly in the supply, despite Jason’s repeatedly expressed concern as to whether she was content to do so.
72.
It is also true that there were subsequently further sales by the officers of cheap goods, although never in large quantities; and that the officers allowed her credit, which in our view was questionable conduct, since a creditor has power over a debtor; and that there came a time when Ms Moore told Jason that she had lost her job. However, Mr Carey-Hughes insisted that the matter had to be looked at by reference to Jason’s first question and her answer. In the circumstances, there is no distinction to be made between any of the offences. In due course, Ms Moore also initiated, without any suggestion or request, further offences of handling and delivering counterfeit notes.
73.
From the point of view of the officers’ conduct, they were conducting an authorised operation into serious criminal conduct. They were providing themselves with a justifiable entry and cover by supplying cheap goods. They did not seek out Ms Moore, but she sought them out, after her step-father’s introduction, so that she could make some money. The officers were investigating drug-dealing, so that they were surely not to be criticised as acting unjustifiably in raising a general question as to where drugs might be sourced. They put no pressure on Ms Moore, and no persuasion or temptation, to supply them. They never suggested that the supply of cheap goods would not be available if Ms Moore did not help them source drugs. There is something entirely disproportionate about the submission that a novice to drug dealing was lured into the hugely serious involvement in the supply of ounce after ounce of cocaine by a few tens of pounds of cheap goods.
74.
Fifthly, there is the question of the authentication of conversations and contacts. We know, for the most part, the actual words of the protagonists’ conversation because they were recorded for the purpose of evidence. This is not a case, as might otherwise happen (and did happen in
Moon
because of a failed recording), where there is a dispute about what was said. As was observed by Lord Hoffmann in
Looseley
, one of the dangers of undercover officers providing any opportunity for crime, let alone entrapping defendants into it, is that “they will try to improve their performances in court”, or will slide into oppression, extortion and corruption. However, detailed substantiation of conversations and contacts will be a prime safeguard against that.
75.
Finally, it must be recalled that the burden of proof is on the applicant defendant, albeit the standard is only that of the balance of probabilities. Unless the relevant facts are agreed, or are assumed for the purposes of argument, it may be necessary therefore for an applicant to give evidence in a
voir dire
, or to cross-examine the undercover officers as to their conduct or for there to be at least agreed assumptions as to the facts. If Ms Moore wished to say, as was submitted on her behalf, that it was a clear, albeit unspoken, premise of her relationship with the undercover officers that they were taking advantage of her vulnerability and innocence to lure her into offending by the temptation of cheap goods, and that the recordings of their conversations did not reflect the true circumstances as they had to be understood, then it was for her to initiate the necessary evidence and cross-examination. That was what both parties had sought to persuade the judge to undertake in
M
.
76.
In these circumstances, we have been unable to say that the judge was wrong to conclude that on the facts of this case the application to stay the proceedings for abuse of process had not been made out. The conduct of the undercover officers was not so seriously improper as to bring the administration of justice into disrepute and there is no affront to the public conscience in these prosecutions. Although this case does not fit precisely into any particular mould, as reflected in decided cases, in our judgment the essence of it is similar to
M
and not to the
Attorney General’s Reference (No 3 of 2000)
. The undercover officers here did no more than provide Ms Moore with an opportunity, which she seized immediately and resolutely, to volunteer herself as a participant in substantial offending. They did not create her offending, indeed they even sought to distance her from it, but she persisted. This remains the case even if, as we assume, Ms Moore had never supplied drugs before and even if it could be said that, but for the opportunity created, she would not have done so on these occasions.
77.
If Ms Moore’s appeal cannot succeed, it is common ground that Mr Burrows’ appeal cannot succeed either.
Conclusion
78.
These are the reasons for our dismissal of the appeals of Ms Moore and Mr Burrows at the time of their hearing.