Articles Criminal Defence 18th Dec 2015

Feeling Trapped? Shall I stay or shall I go now?

Furcht v Germany (2015) 61 E.H.R.R. 25, ECtHR may prove to be no more than just another entrapment case decided on its own facts, this time falling on the side of the defence, but nonetheless it still serves to remind practitioners of the right to full disclosure of the true scope of a police operation to clarify which side of the line between incitement and legitimate policing your case falls. The case also makes clear that once a “not wholly improbable” allegation is made the burden of proof falls on the crown to show there was no incitement. Finally, it explores the inadequacy of other remedies such as shorter sentences, preferring wholesale exclusion of entrapment based evidence.

The facts
Furcht was a German national who was born in 1961 and with no previous convictions. In 2007 he was approached by undercover police officers in the context of criminal investigations against six other people suspected of drug trafficking. One of the suspects was a friend and business partner of Furcht and the officers intended to establish contacts with the suspect through him. They initially pretended to be interested in purchasing real estate and later in smuggling cigarettes.
During one of the meetings with the undercover officers, Furcht offered to establish contacts with a group of people trafficking in cocaine and amphetamine (including his friend suspected of drug trafficking) while stating that he did not wish to be directly involved in the drug trafficking, but that he would draw commissions.
The undercover officers expressed an interest in transporting and purchasing drugs. In a subsequent telephone conversation, on 1 February 2008, Furcht explained to one of the officers that he was no longer interested in participating in a drug deal, but a few days later, on 8 February, the officer dispelled the concerns he had and Furcht eventually arranged two purchases of drugs for them in February and March 2008. In the meantime, a district court had authorised a criminal investigation against him.
Following the second transaction, Furcht was arrested and, in October 2008, he was convicted of two counts of drug trafficking. He received five years’ imprisonment. His appeals against the convictions were unsuccessful. In fixing the sentence, the first-instance court noted that Furcht had been incited by a State authority to commit the offences and found that this was a weighty mitigating factor, leading to a relatively mild sentence.

European Court
The Court examined two questions, firstly, whether the criminal proceedings against Furcht had been unfair and, secondly, whether he could still claim to be the victim of the alleged violation of the Convention for the purpose of Article 34 (individual applications), having regard to the fact that the German courts had already acknowledged his incitement by a State authority to commit the offences, and had mitigated his sentence.

The Court came to the conclusion that the undercover measure in Furcht’s case had gone beyond the mere passive investigation of criminal activity. The measure had amounted to police incitement as defined in the Court’s case law. Moreover, the evidence obtained by the police incitement had been used in the criminal proceedings against him.
In coming to the conclusion that he had been incited to commit the offences, the Court noted that Furcht had no criminal record, that there were no objective suspicions that he was involved in drug trafficking and the police had only seen him as a means to establish contacts with another suspect.
Moreover, although it was true that Furcht himself later raised the possibility to deliver drugs and had been able to quickly initiate drug deals, the relevant time for determining whether there were objective suspicions that a person was predisposed to commit a criminal offence was when that person was first approached by the police. It was also significant that Furcht had explained to one of the undercover police officers that he was no longer interested in participating in a drug deal. Despite this, the officer had contacted him again and had persuaded him to arrange the drug sale. By that conduct, the investigating authorities had clearly abandoned a passive attitude and had caused him to commit the offences.

Article 34
At issue was the question of whether the German courts had provided him with sufficient redress. Under the Court’s case-law, Article 6 did not permit the use of evidence obtained as a result of police incitement. As such, for the trial to be fair all evidence obtained in such a way had to be excluded, or a procedure with similar consequences had to be applied (for example, a stay for abuse.)
In Furcht’s case, the evidence obtained by police incitement had been used and his conviction had been based on that material. The Court was therefore not convinced that even a considerable mitigation of his sentence could be considered as a procedure with similar consequences as an exclusion of the evidence in question. Accordingly, Furcht had not been provided with sufficient redress and could still claim to be a victim of the alleged breach of the Convention.

The burden of proof
In the full judgement, at paragraph 53, the court said this:

“When applying [the above criteria] the Court places the burden of proof on the authorities. It falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable. In practice, the authorities may be prevented from discharging this burden by the absence of formal authorisation and supervision of the undercover operation. The Court has emphasised in that context the need for a clear and foreseeable procedure for authorising investigative measures, as well as for their proper supervision. It considered judicial supervision as the most appropriate means in case of covert operations.”

In conclusion, what is clear is that, providing a defendant raises an incitement / entrapment issue that is not “wholly improbable” this judgement indicates that the crown must then make the running and disprove it. This surely strengthens the hands of the defence even where a defendant may at some point after being approached have had criminal ideas not acted upon, as Furcht did here when looking to effect drug introductions but not become directly involved in them. Whether English judges will look so favourably upon such facts remains to be seen.

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