R v TL

There can be an abuse of process through entrapment by non-state actors, but such an abuse of process argument succeeding will be rare indeed.

Mr L was charged with attempting to meet a child following sexual grooming. Mr L joined a chatroom and stated that he and his girlfriend were looking for a girl to try new experiences with and that girl should be between 18 and 29 years old. Mr U, a member of a ‘vigilante' group, created a false profile in which he publically pretended to be a 14 year old girl (although the site required him initially to give the girl's age as 18).

Mr L conversed with Mr U electronically, believing he was talking with a 14 year old girl. Mr L eventually suggested she spend a night with Mr L and his girlfriend. Mr U, others from his group and the police, attended Mr L's property and he was arrested.

The defence argued there was an abuse of process in that Mr L had been entrapped and incited to commit an offence which would otherwise would not have occurred. The defence submitted that vigilante groups should not be encouraged to undertake the work of the police, and that the process of the court was being abused by failing to regulate these groups.

The trial judge eventually allowed the application, and the proceedings were stayed. The basis of the judge's reasoning was that the common law principle of entrapment as set out in R v Loosely [2001] UKHL 53 applied to actions of private citizens in the same way as it applies to police officers. He stated that the offence was artificially created by the vigilante group without reasonable excuse and police officers acting in this way would have been an abuse of process. The prosecution appealed that decision.


The court of appeal considered the principles laid down in R v Loosely [2001] UKHL 53 particularly whether the prosecution would be "deeply offensive to ordinary notions of fairness" or "an affront to the public conscience". The court stated that it had "no hesitation in concluding that the circumstances of the case are not amongst" cases that fall within the above descriptions.

The court found that the starting point in relation to abuse arguments founded on entrapment by private citizens face a higher bar than for entrapment by state actors, but nevertheless there can be such cases, ‘so serious would the conduct of the non-state actor have to be that reliance upon it in the court's proceedings would compromise the court's integrity'.

Plainly, therefore, where such actions would not be an abuse of process by the police they are not by the non-state actor. Here the court of appeal disagreed that such actions would have been an abuse even by the police. In this case, if police officers had engaged in similar conduct it would not have been an abuse. The court found there was nothing in Mr U's conduct that made prosecution inappropriate.

Appeal allowed, fresh trial ordered.


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