Sting operations, through which police officers or agents engage in deception to try to catch persons who are committing crimes, raise concerns about possible entrapment.
In the practice of journalism and whistle-blowing entrapment means "deceptive and trust-breaking techniques ... applied to trick someone to commit a legal or moral transgression.
[7][8] The 1828 edition of Noah Webster's American Dictionary of the English Language defines entrap as: To catch as in a trap; to insnare [sic]; used chiefly or wholly in a figurative sense.
In deciding whether to grant a stay, the Court will consider, as a useful guide, whether the police did more than present the defendant with an unexceptional opportunity to commit a crime.
In Loosely, Lords Hoffman and Hutton indicated certain factors that should be considered in deciding whether proceedings against a defendant should be stayed: It has been held that it is generally acceptable for the police to conduct test purchases (DPP v. Marshall) or pose as passengers to catch unlicensed taxi drivers (Nottingham City Council v. Amin).
Historically, entrapment was common in the eighteenth and nineteenth century, and was used frequently by the Bank of England and Royal Mint to catch people involved in currency crime during the Restriction Period of 1797–1820.
The New York Supreme Court said in 1864 that "[It] has never availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics, it never will".
In Sorrells v. United States,[2] the Supreme Court unanimously reversed the conviction of a North Carolina factory worker who gave in to an undercover Prohibition officer's repeated entreaties to get him some liquor.
It identified the controlling question as "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials".
In the former, the Court upheld the conviction of a Washington man for manufacturing methamphetamine even though an undercover agent had supplied some of the ingredients, and also pondered an outrageous government conduct defense, though it did not enable it.
Hampton let stand, by a similar margin, the conviction of a Missouri man who had, upon seeing track marks on the arms of a DEA informant, expressed interest in obtaining heroin to sell.
However, in all cases, concurring opinions had advocated an "objective" test, focusing instead on whether the conduct of the police or other investigators would catch only those "ready and willing to commit crime".
[37] In the Supreme Court's last major ruling on entrapment, Jacobson v. United States,[39] which overturned the conviction of a Nebraska man for receiving child pornography via the mail, the subjective vs. objective debate was completely absent.
Both the majority and dissenting opinions focused solely on whether the prosecution had established that the defendant had a predisposition for purchasing such material (which had only recently been outlawed at the time of his arrest).
Examples exist of an appellate court failing to allow an entrapment by estoppel defense where a municipal official provided misleading instructions regarding a state law.
[43] The essential elements of an entrapment defense are: Article 6 of the European Convention on Human Rights has been interpreted as forbidding prosecution of acts induced by undercover officers.
In the case of Teixeira de Castro v Portugal, the European Court of Human Rights found that the prosecution of a man for drugs offences after being asked by undercover police to procure heroin was a breach of the defendant's rights under Article 6 as the investigating officers's actions "went beyond those of undercover agents because they instigated the offence and there is nothing to suggest that without their intervention it would have been committed".