Defence of entrapment

Two incidents, with a common underlying theme but not related, are the impetus for this week’s article, the criminal defence of entrapment.

It is the defence available to an accused person in the Western world (America, England, etc.,) charged with a crime, which can be relied on to lead to acquittal, if the defendant can establish that he was lured to commit the offence through the trickery, coercion, harassment, repeated coaxing, etc., of a law enforcement officer.

In America, only a government official, such as an FBI official or a police officer can be the subject of an Entrapment Defence.

It is a difficult defence to raise, because there is a distinction between what is known as ‘opportunities’ to commit crime, which law enforcement agents are allowed to exploit in sting operations to nab criminals, as it only presents opportunities – that is, a temptation to break the law – unlike entrapment where a victim is coerced or openly tricked or lured to commit the offence.

Incidents

Now, back to the incidents I opened the article with. The first was a chance meeting with Kwesi Nyantakyi, the former President of the Ghana Football Association (GFA).

We talked about our first meeting in Dortmund, Germany, when as a sports pundit for OBLS Television, London, I interacted with officials and players of the Black Stars.

The other incident was the GTV programme, Prime Time with Ibrahim Saanie Daara, the former Public Relations Officer of the Ghana Broadcasting Corporation talking about Anas Aremeyaw’s sting operation, which led to the dismissal of Kwesi Nyantakyi and himself.

Mr Daara was visibly angry on set, accusing of using subtitles, voice-overs and previously obtained images to reconstruct the various scenes to create an impression of live recordings; which in his opinion were illegal tactics.

What he described and what largely occurred in relation to Mr Nyantakyi is uncomfortably close, in my opinion, to entrapment: when law enforcement officers urge, harass or otherwise overly encourage an individual to commit a crime when he/she would otherwise not have done so.

The Anas exposé on the GFA led to the dismissal of Mr Nyantakyi, who was on track to become the first black President of FIFA. A similar sting operation on the Judiciary led to the dismissal of some judges a few years back.

Corruption

Sting operations are legal, and surely, if an investigative journalist can deploy legal tactics to unearth criminality, that is fine and should be encouraged.

However, there is a fine line between the modus operandi of sting operations, where opportunities are created for the possible commitment of crime, and entrapment.

In English law, entrapment occurs when an agent of the state – usually a law enforcement officer or a controlled informer – causes someone to commit an offence in order that he could be prosecuted.

As Lord Nichols posited in R v Loosely (a case about entrapment) the practice whereby the state induces people to commit crime by entrapment is a clear misuse of the coercive powers of the state and it is simply not acceptable that the state through its agents should lure citizens into committing acts forbidden by the law, then seek to prosecute them.

The only difference in the Anas case is that he is not a government agent, but his modus operandi bordered on entrapment. In the American case of Sorrels v USA, the elements of the defence were detailed.

There is uncertainty on what should be the grounds for the defence. While Chief Justice C.E Hughes was of the view that the focus of the defence should be centred on the predisposition of, or lack of, the defendant to crime, Justice Owen Robert preferred an analysis of the conduct of the law enforcement agent spearheading the operation.

It is my candid opinion that our judges should develop a general defence of entrapment along the lines of cases discussed above but not limiting its scope to only law enforcement agents who can entrap potential criminals, but also extending it to investigative journalists.

The writer is a lawyer.

E-mail: georgebshaw1@gmail.com