Looseley, R v.

Factual and Procedural Background

Two linked appeals were decided together.

• The Appellant’s Case: An undercover operation in The City targeted Class-A drug distribution. A covert officer (“Officer A”) telephoned the Appellant, arranged three separate purchases of heroin, and recorded each meeting. At trial the Appellant sought (a) a stay for abuse of process and (b) exclusion of the officer’s evidence under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). The trial judge refused both applications, the jury convicted, and the Court of Appeal dismissed the ensuing appeal.
• The Attorney General’s Reference: Undercover officers tempted an acquitted person (“the Acquitted Person”) to obtain heroin after repeatedly supplying him with cheap contraband cigarettes. The trial judge stayed the prosecution as an abuse of process, but later lifted the stay when the Crown offered no evidence. The Court of Appeal disagreed with the stay yet certified a question of general public importance, prompting the present reference.
• House of Lords procedure: The appeals were heard together by five Law Lords (Judge Nicholls, Judge Mackay, Judge Hoffmann, Judge Hutton and Judge Scott). Judge Hutton set out the formal orders; Judge Nicholls delivered the lead judgment on principles.

Legal Issues Presented

1. In the Appellant’s appeal: Whether the trial judge should have excluded the evidence of Officer A or stayed the indictment because the officer actively requested heroin, allegedly amounting to impermissible entrapment.
2. In the Attorney General’s Reference: Whether, and if so how, article 6 of the European Convention on Human Rights alters (i) the PACE s.78 discretion to exclude evidence or (ii) the court’s inherent power to stay proceedings for abuse of process when undercover police officers instigate an offence.

Arguments of the Parties

Appellant’s Arguments

• Officer A “went beyond mere observation” by repeatedly requesting drugs; this constituted entrapment and rendered the trial unfair under article 6.
• Evidence obtained in such circumstances should be excluded under PACE s.78, or the indictment should be stayed as an abuse of process.
• The undercover call and request infringed the Appellant’s article 8 right to respect for private life.

Respondent’s Arguments

• The officer simply provided an opportunity the Appellant willingly exploited; there was no improper inducement.
• English law offers two adequate remedies—stay or exclusion—neither of which was warranted on these facts; article 6 adds nothing new.
• No article 8 infringement arose because the officer acted as an ordinary customer would when purchasing contraband.

Table of Precedents Cited

Court's Reasoning and Analysis

The House of Lords reaffirmed that entrapment is not a substantive defence in English law. Instead, two distinct judicial remedies exist:

• Stay of proceedings (abuse of process): Appropriate where police conduct is “so seriously improper as to bring the administration of justice into disrepute” or to “affront the public conscience.” The stay protects the integrity of the judicial system, not the defendant’s culpability.
• Exclusion of evidence under PACE s.78: Directed to trial fairness and evidential reliability. It is not the normal remedy for entrapment because the complaint concerns the propriety of bringing the prosecution at all.

The Law Lords traced the evolution from R v Sang (no discretion to exclude) through legislative intervention (PACE s.78), common-law development (Bennett, Latif) and the Human Rights Act 1998.

A multi-factor test was endorsed for identifying impermissible police conduct, including: nature of the offence, existence of reasonable suspicion, degree of police inducement, vulnerability of the accused, proportionality and supervision of the operation.

Applying those principles:

1. The Appellant willingly supplied heroin to an officer who merely posed as a regular customer within an authorised operation. The officer’s conduct amounted to presenting an “unexceptional opportunity,” not to creating state-induced crime. No stay or exclusion was warranted; article 6 and article 8 were not breached.
2. The Acquitted Person was induced to supply heroin only after officers repeatedly tempted him with cheap cigarettes—an inducement “not ordinarily associated” with such crime. The trial judge’s stay was within discretion; the Court of Appeal’s contrary view arose from a misreading of Teixeira de Castro.

Holding and Implications

HOLDING: The certified question in the Appellant’s appeal was answered “No”; the conviction stands. On the Attorney General’s Reference, the House held that domestic law already satisfies article 6 and requires no modification; the trial judge was entitled to stay the prosecution on the facts.

Implications:

• The decision clarifies that the primary remedy for true entrapment is a stay, not evidential exclusion, and that English law’s twin-remedy structure is Convention-compliant.
• Courts must assess undercover operations case-by-case, focusing on whether police went beyond providing a normal opportunity and instead instigated the crime.
• The ruling provides authoritative guidance for future covert policing, emphasising proper authorisation, reasonable suspicion, and proportionality.
• No new precedent overturning existing law was created, but earlier uncertainty about the impact of Teixeira de Castro on English practice was resolved.