Kim wrote:BTW re all the above written on entrapment, entrapment isnt a defence in UK law as far as I know (unlike the US).
Traditionally you would be correct, but since the turn of the millenium the House of Lords have recognised the need for entrapment law in the UK, using the rights of a fair trial under the ECHR article 6, and s78 of PACE 84 as the guiding point for fair trials. While technically not a substantive defence, the effect of entrapment will suspend(technically called a "stay of proceedings") a trial, or will consider disregarding parts of evidence that show there was sufficient inducement in manufacturing the crime.
In that way you could say the end game is that it is a defence, even better than a defence, because some defences in the common law will reduce tariff, but not get a case thrown out!
Dimi wrote: The US have stupid laws that come under the Constitution. Entrapment shouldn't be a law in the UK, though I guess you would have a better idea Kim.
Entrapment is an excellent addition to the common law. In the old days, a policeman could go to any man who had bought a joint before in his life, and threaten them to buy a kilo of cocaine from their local dealer, then they would bang you up for 15 years on possession with intent to sell! Its not hard to see why this situation is a bad one, because it makes our justice system unequitable! This is the reason why Judges have been so keen to find a statutory link to the ideas of Entrapment, in order to create a solid precident for future cases.
SaintPowelly wrote:I don't understand that ( I must be stupid )
does that mean that there is a loophole or are they banged to rights ??
Well, as Borges point out, the first step is to ask whether or not the the person was willing to commit the crime... and the outside interference merely facilititated the making of a deal. In this situation for isntance, is the bookmaker fixing a match and looking for buyers to fund it, and then both make money on the betting odds once it is done?
If that is the case then the evidence gained by the investigative journalist can be used. This is because the agent used in uncovering the crime is simply a vessel for the crime to take place. He could have been anyone! To use another example, it is like a dealer asking an undercover policeman if he wants to buy drugs, then post transaction the dealer is arrested. Its clear the crime would have been committed with out the entrapment, even though the policeman will break the law in order to make an arrest.
However the position becomes more cloudy if the agent himself makes the first move. If you go to an illegal bookmaker and ask for him to throw a match knowing that he is a gangster with the contacts, money and influence to do it, you have to break it down furthur.
Again you have to ask, was the person willing to break the law, or was the approach by the agent merely a convienent approach that allowed them to do it more easily?
Firstly you have to look at predisposition. If a person already had criminal intent before inducement by an agent.....( crimes are made up of Actus Reus, the guilty act, and Mens Rea, the guilty mind...intention is a common mens rea element in crime, and the actus reus will be the same in entrapment, as the crime has still been committed regardless of how it is constructed)..... then it is not entrapment. In the US, most entrapment cases revolve on the sole argument of whether or not the police implanted intent, so actually you could argue the UK is actually a wider gambit, contrary to what has been posted above. (You want the proof, Hampton vs US 1976 425 US 484, 489 - 490 per Rehnquist CJ... for a explanation of the difference between USA vs UK, R v Mack (1988) 44 CCC (3d) 513, 551).
Here predisposition is not so important, as its full accepted that it is also the conduct taken by an agent that is important. The techniques someone uses to bring out a predetermined willingness to commit the crime in other words. In assessing that, the key test will be the following....
Nature of the offence...... Was there contrary evidence to suggest match fixing was such a problem, that inducing it to catch those involved was necessary in reference to the way it is carried out? One could argue that, with the ICC having its own Anti Corruption Unit with 5 highly paid proffessional investigative agents, the need for the NOTW to also get involved would equate to an unjust inducement. You could argue that it is so bad, it was needed to be uncovered, but then again that would only serve to strength the counter argument... that the nature of the crime was obvious, and so didnt need to be uncovered.... Id say 1 up on entrapment here.
Reason for particular operation.... Why did the NOTW try to carry out the operation. As a newspaper, one could argue it was to sell copies of their product, and not for the integrity of the game. It is more likely then that entrapment was unjust in this case.
The nature and extent of agent participation in the crime.... again, if the NOTW simply went to a known bookmaker and facilitated, through a middleman, a match fix then it is more likely that this is unjust. This is obviously down to the fact it is less likely to prove that they were willing to commit the crime without inducement. Things like the amount of money fronted would be relavent, as they are more of a carrot to create duress in the accused.
Past criminal records... dont necessarily allow the agent carte blanche to induce. They have to be generally relevant to the specific type of enducement, and again running an illegal bookmakers with no prior evidence of match fixing is going to see that unjust.
So without known who made the first move and all the details, its hard to predict, but Ive tried to outline above why the Police might find it hard to make the evidence stick. It all depends on the judge and the quality of your lawyer at the end of the day, and what precedents are deemed relevent.
It would be hard to pin a conviction on the players in question but Salman Butt and Asif are more culpable. As Captain one could argue he has a fiduciary relationship with his players, and his increased leadership status would deem him more culpable, Asif and Amir would be found to act in duress.... whether that will save their careers if found guilty is another thing, but will no doubt get them a better case with the police. If evidence comes out of team management intereference, usually the harshes punishment will go to the highest man, and also the court would take into account the duress of a potentially threatening situation making them act.
I doubt the punishment will be harsh for the players involved... not from a legal sense. The bookmaker is a different and much more complex story, as above!
Posted: Sun Aug 29, 2010 5:21 pm