R. v Sang

Die Mercurii 25° Julii 1979

Parliamentary Archives,
HL/PO/JU/4/3/1365

HOUSE OF LORDS

REGINA (RESPONDENT)

v.

SANG (APPELLANT)

Lord Diplock

my lords,

Lord Diplock
Viscount Dilhorne
Lord Salmon
Lord Fraser of Tullybelton
Lord Scarman

The appellant was indicted at the Old Bailey before Judge Buzzard and a
jury for conspiracy to utter counterfeit American bank notes. On his arraign-
ment he pleaded not guilty to the charge and, in the absence of the jury, alleged,
through his counsel, that he had been induced to commit the offence by an
informer acting on the instructions of the police, and that, but for such per-
suasion, he would not have committed any crime of the kind with which he was
charged. Faced, as he was, by recent decisions of the Criminal Division of the
Court of Appeal that "entrapment" is no defence in English law (Reg. v.
McEvilly & Lee [1974] Crim.L.R. 239; Reg. v. Mealey & Sheridan [1974]
60 Cr.App.R. 59), counsel for the appellant sought to achieve by a different
means the same effect as if it were. He submitted that if the judge were satisfied
at a "trial within a trial" that the offence was instigated by an agent provocateur
acting on the instructions of the police and, but for this, would not have been
committed by the accused, the judge had a discretion to refuse to allow the
prosecution to prove its case by evidence.

In support of this submission counsel was able to cite a number of dicta from
impressive sources which, on the face of them, suggest that judges have a
very wide discretion in criminal cases to exclude evidence tendered by the
prosecution on the ground that it has been unfairly obtained. In addition
there is one actual decision of the Court of Criminal Appeal in Reg. v. Payne
[1963] 1 All.E.R. 848 where a conviction was quashed upon the ground that
the judge ought to have exercised his discretion to exclude admissible evidence
upon that ground—though this was not a case of entrapment. Moreover
there had also been a recent decision at the Central Criminal Court (Reg. v.
Ameer & Lucas [1977] Crim.L.R. 104) in a case which did involve an agent
provocateur where Judge Gilles, after a lengthy trial within a trial, had exercised
his discretion by refusing to allow the prosecution to call any evidence to prove
the commission of the offence by the accused.

In order to avoid what promised to be a lengthy "trial within a trial", which
would be fruitless if Judge Buzzard were to rule as a matter of law that he had
no discretion to exclude relevant evidence tendered by the prosecution to
prove the commission of the offence, even though it had been instigated by an
agent provocateur and was one which the accused would never have committed
but for such inducement, the judge first heard legal submissions on this question.
He ruled that even upon that assumption he had no discretion to exclude the
prosecution's evidence. In…