Under German law, it is generally prohibited[9] to incite, persuade or attempt to commit a crime. [10] However, the Federal Court of Justice has held that the intervention of undercover officers is not a reason to stay the case per se. [11] If undercover agents have been used without adequate justification, the penalty for the offence committed may be reduced. [12] Determination of whether detention took place [38] In these appeals, it was not disputed that the guidance in Looseley on how the court should determine whether detention took place also applied to Scottish law. I share that view. The guidelines are consistent with those of older Scottish cases, but are more detailed and take into account detection techniques that go beyond the practice of test purchase in those cases. I wish to emphasize that the R/Mack analysis also contains many things that are relevant and useful in the context of our law. Thus described, punishment is not limited to situations in which the accused has been medically or procedurally disadvantaged or has been the victim of injustice; Nor is it limited to issues relating to the medico-legal fairness of the taking of evidence. As the Stuurman court explained, the question is whether it would be depressing to require defendants to be tried „with due regard to the principles of substantive justice and due process.” The breach of these principles by the procedure must be assessed on the basis of recognised legal rules.

An attempt based on trapping would not meet these standards. Account should also be taken of the observations made by Lord Justice-General Rodger in Montgomery v. HM Advocate, supra. Even if there were also doubts as to whether the notion of oppression was broad enough to include the trap, those doubts would be dispelled by the fact that he would have to bring an action for violation of the Convention right under Article 6, as explained in the de Castro case. In this post, I noted that at the time of writing this report, there were no reported cases in Scotland dealing with the legal issue of whether individuals (as opposed to public officials, such as police officers) could do so legally. There is evidence that a significant number of prosecutions (and convictions) have been obtained through the use of evidence that would not necessarily exist without the intervention of these groups. If their actions were – and are – illegal, then such evidence would likely not be available to COPFS. If you are arrested or know that the police want to talk to you about a crime, be sure to insist on your right to free and independent legal advice. „It would have been quite different if an injustice to the complainant had been established. If, for example, the police had urged him to commit the crime or had incited him to commit a crime that he would not have committed otherwise, the situation would have been very different. But there can be no question of such a thing here. Police officers were ordered not to purchase drinks outside of business hours until they had provided drinks to two other customers outside of authorized hours.

When they intervened, the law of Parliament had already been violated by the complainant and they were busy discovering the commission of a breach of the law. In my view, there can be no justification for treating such evidence as unfair in any way. In the light of the observations of Judges Lord Hoffmann and Lamer, the adoption of this position does not, in my view, preclude the Court from considering a detention objection. In the circumstances of this case, it is sufficient for the appellants to admit (for purposes of their pre-trial argument) that they wilfully committed the criminal conduct of which they are charged. [3] The use of such methods does not appear to have been contemplated by this Court prior to Marsh v. Johnston SLT (Notes) 28 in 1959, another case involving trial purchases by plainclothes policemen. The issue raised on appeal was whether the officers` statements should have been excluded because they themselves had committed crimes when they made the test purchases. It was based on Lawrie v Muir 1950 JC 19 and Fairley v Fishmongers of London 1951 JC 14, which concluded that the court could exclude evidence obtained by an illegal or improper search of premises.

The court dismissed the appeal. Lord Justice-General Clyde acknowledged that the officers had committed a crime, but stated (at page 28): This was the first time imprisonment had been successfully pleaded in a terrorism case. Three previous attempts failed. [8] [22] The general nature of trapping was succinctly described by Lord Hoffmann in a speech in which Lord Nicholls of Birkenhead, Lord Mackay of Clashfern and Lord Scott of Foscote agreed: Part of the trapping defence was first recognized by the Supreme Court in Raley v. Ohio. [35] There, four defendants testified before a committee of the Ohio State Legislature. The chair of the committee told them that they could assert their right to self-incrimination. They asserted this right and refused to answer questions. However, Ohio law granted them immunity from prosecution, so the right to self-incrimination was not applicable, and they were then prosecuted for failing to answer questions. The Supreme Court overturned three of the four convictions based on the doctrine of incarceration by estoppel.

(The fourth declined to make his speech, after which the committee found that the right to self-incrimination did not apply to this issue.) In the case of persons who are not initially suspected and who are unlikely to commit a specific offence, a 1999 decision[13] states that the detention of such persons violates the right to a fair trial and that the penalty for the offence committed can therefore be reduced.