The Problem with Entrapment

In R v Looseley; Attorney Generalʹs Reference (No. 3 of 2000) the House of Lords articulated a legal framework to govern ʹentrapmentʹ in criminal cases. Their Lordships regarded the need for judicial intervention to assist entrapped defendants as uncontroversial. This article argues that the doctrine they set out, in fact, necessitates substantial, and largely unarticulated, departures from principles the courts ordinarily stress as fundamental to the criminal law. In particular, entrapment doctrine determines liability for criminal acts by reference to the kind of environment inhabited by their perpetrators, a perspective the law ordinarily attempts to exclude. This article suggests that the anomalous treatment of entrapment can be understood as a device to prevent the police from relocating the temptation to commit crime to environments in which they are not ordinarily confronted and to ensure that those from backgrounds in which serious criminality is not usually a plausible option will escape punishment if tempted to commit crime by the police.