The ECtHR held in 2002 that there had been a breach of Art 6(1) since H acted as an agent of the state and A’s right to silence was infringed by his undercover cell interrogation. There was no breach in relation to the evidence of the other two conversations.
In 2004 the convictions were overturned by the Court of Appeal. Hooper LJ stated [at para 122] ‘Allowing an agent of the state to interrogate a suspect in the circumstances of this case bypasses the many necessary protections developed over the last twenty years.’ See R v Allan [2004] EWCA Crim 2236.

The Special Immigration Appeals Commission (SIAC) and the Court of Appeal had held that evidence obtained by torture abroad was admissible for the purpose of deciding whether a person was a terrorist and a threat to national security.

The House of Lords held the exclusion of any evidence obtained by torture, including outside the jurisdiction, is a principle of the common law.

Police planted a covert listening device to a property frequented by a suspected drug dealer. There was no statutory authority for their action. The evidence from the recordings founded the conviction. The House of Lords rejected the argument that there was a violation of Art 8 ECHR.

There had been a violation of Art 8 but not Art 6. The admissibility of evidence was primarily a matter for the domestic court, and this had properly applied the law. The question was whether the proceedings as a whole were fair.

Plain-clothed officers hired a taxi without a licence. The magistrate had excluded the evidence on the grounds of entrapment and violation of Art 6.

Evidence should be admitted. D would have behaved in the same way if others had been offered the opportunity.

A covert listening device had been planted and police had unlawfully entered the appellant’s home to replace batteries.

The evidence should not be excluded. The evidence was authentic, probative, and relevant. The quality of the evidence had not been affected by the police action.

L was charged with attempting via WhatsApp to groom a child for sex. In fact unknown to him he was communicating with an adult male Mr U who led a group dedicated to exposing child sexual groomers. When L arrived for the encounter with the child, he was confronted by Mr U and the police who had been alerted. L was charged on the basis of the electronic record of the WhatsApp messages. After the prosecution put its case at trial, the judge granted a stay of prosecution based on entrapment in that the offence would not have taken place without the action of a vigilante. The prosecution appealed.

The Court of Appeal held that the judge had erred in granting the stay and a retrial should be ordered. It reviewed the case law on entrapment by a private individual. The starting point in such a case should be to ask if the same or similar conduct by a police officer would bring the administration of justice into disrepute such that a stay was required. There was nothing in Mr U’s conduct that made it inappropriate for the prosecution to proceed. It was not inconceivable that, given sufficiently gross misconduct by a private citizen, it would be an abuse of the court’s process and a breach of Art 6 for the state to seek to rely on the product of that misconduct. Such cases, however, would be very rare. The Court endorsed police advice that it would be best if those in Mr U’s position left the police to investigate.

An undercover police officer arranged with the defendant to exchange heroin for money. The defendant was charged with supplying or being concerned in supplying to another a class A controlled drug, contrary to s4 Misuse of Drugs Act 1971. The trial judge refused a preliminary request to exclude evidence or stay proceedings. In the second case two undercover police officers were introduced to the accused as a potential buyer of contraband cigarettes. They sold him cigarettes and asked if he could get them heroin. He did so and was charged with supplying heroin. The trial judge stayed the proceedings on the ground that the police had incited the commission of the offence and that otherwise the accused would be denied his right to a fair hearing under Art 6(1) ECHR.

Appeal in the first case was dismissed and in the second case the trial judge was held to have acted correctly. The proper approach is to ask did the police do more than present the defendant with an unexceptional opportunity to commit a crime. It would be unfair to offer inducements and entice a person into actions he would not normally have taken. The proper approach is stay of proceedings, but evidence may be excluded if trial has commenced. In one case, that of a known drug dealer, the conviction was upheld but in the other it had been properly stayed as an abuse of process in that there had been the encouragement of an uncharacteristic offence.

The defendants were convicted of conspiracy to issue forged banknotes. It was argued that evidence had been obtained by the activities of an agent provocateur.

Entrapment was not a defence. There was no common law discretion to exclude relevant evidence, other than confession evidence or evidence obtained after the commission of the offence, because it was improperly obtained.

An undercover police officer posed as a contract killer and secretly recorded conversations with the defendant. The defendant had said he wanted to hire someone to kill his wife. The trial judge refused to exclude evidence in trial for solicitation to murder.

The Court of Appeal reviewed the factors to be considered in exercising judicial discretion to exclude evidence obtained by entrapment. There was no defence of entrapment but s78 PACE could in principle be applied to exclude such evidence on grounds of unfairness to the proceedings.