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Autor:  cat_91  17 January 2010
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Entrapment needs to have a defence. It has been a request asked for a number of years. Indeed, many innocent people have had to endure the trouble of being criminally accused for a crime that they would never have committed had it not been for the extensive pressure placed upon them by undercover government officers. At the moment there is no defence awarded to victims of unfair trapping. There is however an exclusionary rule, which would exclude evidence gained from an unfair trap. But many academics argue that this rule is not good enough. There needs to be a defence of entrapment. Many human rights are violated with the use of a trap. Thus a careful line needs to be followed to ensure that a trap necessarily limits these rights. There is no doubt that the introduction of the trapping system has been quite successful in curbing crime. But there are still many instances when an individual who would not ordinarily commit a crime does so through peer pressure. The trapping system will be discussed in the essay. One will then be shown the positives and negatives of the trapping system. Human rights issues will also be discussed, as well as the opinions of various academics. One will be shown that although the trapping system has been monitored more closely since the introduction of the exclusionary rule, it is not enough to prevent innocent people from being convicted of crimes they would not otherwise commit. Thus entrapment needs to have a defence for it, to protect people rights and to ensure that only people who deserve to be convicted of the crime, be convicted, and innocent people be set free.

Entrapment has been a form of policing that has taken place since the early days of the gold rush. It has also been used as a form of policing since the existence of syndicates. These syndicates were groups of people who committed crimes of large magnitudes and did so for a living which was very successful. It was also becoming very difficult to catch such criminals because they were very good at being discreet and also because there not one but many criminals. Thus ordinary means of policing were proving to be fruitless for such crimes. Thus the trapping system was introduced. The trapping system involved the use of government officials going undercover. These undercover officers would then entice the suspects into engaging in illegal activities. Once the suspects fell for the trap, they would be arrested and charged. This form of policing has proven to be quite successful, in that it has led to convictions of dangerous syndicates. One does not see as many syndicates as one would have seen since the introduction of the trapping system. But problems have arisen since the trapping system was introduced. Undercover agents sometimes push the limits of enticing suspects. The result is that suspects that would not have committed such offences are forced into committing them. Reasons for this may include feeling sorry for the trapper, or gaining a special trust with the trapper. Thus an innocent individual may be pressured into committing an offence he of she would not have other wise have committed. Thus the need for a defence of entrapment has been asked.

If one has a look at the definition of the trapping system, one can will see that a trap is a “person who, with a view to securing the conviction of another, proposes certain conduct to him and himself ostensibly takes part therein. In other words he creates the occasion for someone else to commit the offence”. This definition thus means that a government official will entice a suspected person, to commit an offence by creating an opportunity. To do this, the official must go undercover and pretend to engage in illegal conduct, for the sake of securing a conviction. Once the suspect has fallen for the trap, the government official will then arrest him or her and charge him or her with that crime. One could argue that the trapping system effectively creates a crime, which is false, and thus creates an offence. It could further be said that the government pushes the boundaries of its power, by engaging in criminal conduct. It has been submitted by academics that this form of policing is unethical in nature and is an abuse of government’s powers. This has led to an investigation of the trapping system by the Law Commission of South Africa. In its report, the Law Commission submitted that they believed that the trapping system was a justified use of power by the government, in the quest to detect and prevent crimes. This is true, because without the trapping system, certain types of criminals would not have been brought to justice. There has been no doubt that the trapping system has been successful. Proof of this can be seen in various criminal law cases.

In the case of S v Aldridge and Another, undercover cops pretended to sell unwrought gold to two people. These people were suspected of buying unwrought gold for some time. On the 18th of August 1989, the two appellants purchased the unwrought precious metal. The two appellants voluntarily admitted to buying the gold, and they admitted to receiving the gold and retaining it. At the moment when they received the gold, the police then proceeded to arrest the individuals. They were thus convicted of contravening s143 (1) of the Mining Rights Act 20 of 1967. It was held in the in the court of law that where an accused buys unwrought gold through a trapping process, the fact that the selling of the gold was not serious, and that there was no serious intention of selling the unwrought gold, does not mean that accused has not bought the metal in terms of the definition of the term buying seen in s 143. Thus the trapping system was seen to be successful in bringing criminals to justice. Without such a system, the criminals would still be engaging in criminal conduct. But one needs to ask the question, what if the trap was set up for an individual or individuals, who were not interested in engaging in criminal activity, but did so through the pressures exerted on them from the trap? In such a case, the defence of entrapment needs to be included, so that those unfortunate individuals can be acquitted of a crime that they were unfairly coerced into committing.

In the case of S v Pule an accused was convicted in a magistrate’s court on charges of fraud. The issue at hand was whether the accused had the necessary intention to defraud. The accused admitted to purchasing a radio and tape recorder. He had also made a cheque and forged another person’s signature. The accused pleaded in his defence that he was acting as a police informer. He submitted that in order to infiltrate a syndicate, he had to engage in certain criminal activities. An important judgment was referred to in this case. In the judgment of S v Ganie and Others, the court held that a person who engages in criminal activities, but has a provable and proved intention of simple obtaining evidence against the criminal, would not be regarded as an accomplice to the crime. Thus the question to be asked in this case was whether the accused had the wrong intention or not. It was held that accused had a guilty intention and thus was convicted of fraud.

Thus another example of why the trapping system is so successful has been illustrated. However, it could be interpreted that this was an abuse of power in the above case. Never the less, it is not disputed that the trapping system is a useful means of convicting criminals. The dispute arises when innocent individuals are caught in traps. Thus the need for a defence of entrapment.

In an effort to exert greater judicial control over the trapping system, the legislators inserted provisions into section 252A of the Criminal Procedure Act. This did not mean that they accepted entrapment as a form of defence, but rather the legislators submitted they would accept an evidentiary exclusionary rule. This rule effectively allowed the courts the power to exclude the evidence of entrapment in a criminal trial, if it was proven that the trap that was used was found to be unfair. The question to be asked was what constitutes admissible evidence. Evidence is seen to be admissible provided that the police’s conduct, in going undercover and in setting a trap, does not go beyond the point of simply allowing the suspect an opportunity of committing a crime. Subsection 2 of section 252A set up requirements that have to be met in order that the trap that was set up was fair. The requirements include the following:
The nature of the offence
The type of inducement used by Y and the degree of its persistence
Whether Y’s conduct amounted to an exploitation of X’s emotions or economic circumstances
And whether Y had a suspicion that X had previously committed a similar offence.

In the above requirements, Y is the person setting up the trap, and X is the suspected person who is being lured in the trap. With regards to point number 3, if Y’s conduct amounted to an exploitation of X’s emotions or economic circumstances, then the trap would be regarded as unfair, since he or she was pressurized through emotional means, or through financial means. It can be further submitted, that a problem with these requirements, is that the courts have a very wide discretion in looking at the type of inducement used and the degree of its persistence. Thus, there is no set way of determining what is considered fair and what is not considered fair. Section 252A further submits that even the conduct of the undercover officer goes beyond the phase of simply offering an opportunity to the suspect, the evidence obtained by the officer can still be used provided that it was not obtained in an improper or unfair manner. Subsection 3 provided requirements that had to be met in deciding whether the officer still acted within his or her limits in pushing the limits of the trap.

Section 3 states the requirements as follows:

The nature and seriousness of the offence
Whether it would otherwise be difficult to uncover the commission of the relevant type of offence
Whether there has been an infringement of any fundamental right contained in the Constitution.

Infringement of human rights is an issue that needs to be considered with regards to the trapping system. Indeed one of the principal infringements is the infringement of the right to a fair trial. Other possible constitutional infringements include the right to freedom and autonomy, as well the right to privacy. Is the trapping system justified in infringing these rights? At the moment there is no answer to these questions, as the there has been no constitutional challenge that has been made on the provisions of Section 252A yet. Thus there is no answer.

There are also certain practical implications of section 3 of section 252A. First, if the trap that is set up only affords the accused an opportunity to commit the crime, without any further enticement necessary, then there are very slim chances for the accused having a defence. If however, the limits are pushed, and the trap includes further enticements and further pressure on the accused to commit the illegal act, then the chances of a defence are much greater. This was seen in the case of S v Nortje, where the accused managed to escape liability because the courts used the exclusionary rule and did not allow the evidence to be used. It can be seen that in this instance the exclusionary rule did work.

However, the fact cannot be denied that there is a need for a defence of entrapment. The following case illustrates that even though the accused was found guilty, the case was significantly more difficult to judge, and it would have served the judge better, had there been a legislation which included entrapment as a defence.

In the case of S v Desai, the accused, like the accused in the Aldridge case, was convicted for purchasing unwrought gold in contravention of the Mining Rights Act 20 of 1967. Like the previous case, he had admitted that he had purchased the unwrought gold, but in this case he pleaded entrapment as a defence. He argued that he had been continually pressurized to buy this gold from the informer for two months. After feeling sorry for the informer, because he had stated that he was in financial difficulty, he decided to purchase the gold. It was at that time that he got caught. At the trial, the accused gave evidence, but the informer did not. There was also no evidence of a police sanction to the informer making contact with the accused or what was said to him. In making remarks, the court submitted this absence of evidence and the fact that the accused was pressurized, meant that there was a possibility of the accused being acquitted. But, the court found that the accused was however knowledgeable in the field of unwrought gold. It was also submitted that method of enticement used by the informer was in no way different than the tactics used by other sellers of unwrought gold. On this basis, the court held that the accused was guilty of the crime.

It can be seen that this sort of case could have gone either way. It was a close decision to make by the court, because of the methods that were used to trap the accused. These methods pushed the boundaries of the trapping system. They did not simply provide an opportunity. They went further by pressurizing the accused into buying the gold.

In the case of S v Hassen and Another, the accused were convicted in the regional court for contravening s 20 of the Diamonds Act 56 of 1986. In this case, they challenged the constitutional validity of the trap that was used, saying that it violated their right to a fair trial. This is stated in section 25(3) of the Constitution Act 200 of 1993. It was held in this case that if the court found that the trapping system was unfair in any way, then the court will remedy the accused with the spirit of the Constitution because there would be a fundamental infringement of a fundamental right to a fair trial. But in this case it was held that the trap was indeed fair and thus no rights were unfairly infringed.

The question one needs to ask ultimately is whether or not there should be a defence of entrapment. One needs to see what the defence of entrapment has to offer the judicial service if it is included. It may be seen that it is a more solid legislation to include than an exclusionary rule that is questionable and too flimsy. The rest of this essay will look at the reasons specifically why the defence of entrapment should be included in the legislation.

Over the years, there has been a call by many people to have entrapment as a defence. It can be seen that where the conduct of the undercover police has pushed the limits of enticing the accused to commit the crime, means that an otherwise innocent person could be convicted of a crime he may not have committed. Another reason why there has been a call for the entrapment as a defence, is the fact that public policy needs to be looked at, and improper police conduct needs to be stamped out, when they use improper means of setting traps. It was submitted in the case of R v Ahmed, that the American practice of accepting entrapment as a defence could possibly be used in South African cases, especially in cases when the police have been using improper trapping techniques in securing a conviction.

It can be seen that by including the defence of entrapment, one is able to reach a compromise with regards to pressurizing the individual, and thereby infringe his constitutional rights, the need for the combating of crime in South Africa, particularly by organised crime syndicates, and finally with the public’s need to maintain decent and proper police standards, so that one does not have unfair police tactics being used.

A critical reason that needs to be seen why entrapment should be used as a defence is simply because a person who is charged for a crime in which he was unfairly trapped in, and which shows that such a person would not have committed such a crime, should be acquitted not because the evidence used was excluded, but simply because the accused did not commit the offence at all.

By using the exclusionary rule, for it to do justice to a person that is unfairly trapped, it would have to exclude all the evidence it has gained, so that the accused cannot be convicted of the offence. This is highly unsound of a rule. A much simpler and more effective legislation would be the entrapment as defence legislation.

A more practical reason why the exclusionary rule is not good enough should be reason enough to discard such a rule. If a person was trapped in such gross unfairness, that he is innocent no doubt, but because he has been pressurized in such a way that he or she now believes that what he of she did was wrong, thus pleads guilty to that crime, the courts will have no option but to convict an innocent person. In this situation, the exclusionary rule cannot protect the accused, and an innocent person will be put away for no reason. For this reason, entrapment should be recognized as a defence.

A famous academic, Du Toit, submitted a proposition that a separate element be added into the legislation. This element would render the exclusionary rule worthless. He called this element, element X. In order for element X to be satisfied, the court must determine whether or not it will be “appropriate and desirable” to convict the accused, then he or she should be convicted. If it is not appropriate and desirable, then the accused should not be convicted of the crime. Thus an unfair trap will occur when the crucial element X will be lacking. It can be seen that if this element is correctly used, it would lead to the acquittal of an accused that has been unfairly trapped. In this way, the defence of entrapment can be recognised. One can even go so far as to say that element X is a necessary constitutional requirement of all crimes. Indeed, a person should only be convicted of any crime if it is appropriate and desirable. This is thus an excellent element to include and would bring about a substantive defence to entrapment.

It can thus be seen that it is necessary to have a defence against entrapment. It has been proven that the exclusionary rule is not sufficient enough to use as a successful remedy for the accused. With having a defence against entrapment, one will not infringe the rights of the accused unfairly. A most appropriate case that illustrates the need for a defence of entrapment is the case of S v Petkar. In this case the trap used was seen to be unfair for the reason that an apparent an obvious weakness was exploited by the person who set the trap up for the accused. The trapper had formed a friendship and had gained the trust with the accused. The appellant also offered initial resistance. This resistance was broken down by the trapper. It can thus be seen that an innocent individual was unfairly trapped. Thus the defence of entrapment should be included in the legislation. It is not good enough that the exclusionary rule is there. A substantive defence needs to be included.


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