The Appeal Court has ruled Police Scotland acted outwith their powers during an undercover operation.
A man was charged at Falkirk Sheriff Court with a contravention of section 30 of the Sexual Offences (Scotland) Act 2009 by engaging in online conversations with persons “for the purpose of gaining access to a 14 year old girl” and attempting to meet persons at a hotel “for the purposes of engaging in sexual activity with a child”. A successful plea in bar of trial was argued was behalf of the accused: Entrapment.
The man was in fact having online conversations with undercover police officers, going by the name ‘Lisa’. In these conversations, the man never expressed any interest in sexual activity with children. When asked what he was ‘in to’, there was no mention of children. The first reference to a child was made by the police.
It was also considered a significant fact that the original chat logs that lead the police to believe the accused was ‘of concern’ did not contain any reference to sexual activity involving a child.
To be legitimate, participation by an undercover police officer in a criminal conspiracy required to be preceded by a reasonable suspicion that a crime was being, or about to be, committed.
It was highlighted during the case that if the accused had already formed the intention to commit the crime and the police merely gave him an opportunity to carry it out, there would be no entrapment. However, if the accused lacked any such intention and the police were responsible for implanting that intent, as the facts suggested in this case, the procedure is objectionable. The Sheriff reasoned that the police had implanted the necessary intention by persisting with the idea that a child could be involved in the planned sexual activity.
The Crown appealed on the basis that police did not lure the accused into expressing a criminal desire. The appeal was refused.
Tod & Mitchell are experts in police powers and our solicitors are committed to holding Police Scotland accountable. The police conduct surveillance routinely, this judgement should serve as a reminder of the fine line between ‘investigating’ and ‘trapping’.