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It's fairly well known that Entrapment can be considered a valid affirmative defense for the person who was induced to commit a crime. However, say that a police officer entrapped someone to, e.g.:

  1. Commit a murder or assault.
  2. Commit a "victimless" crime, e.g. an officer induces someone to pay for a prostitute.

Would that officer be committing a crime or doing something illegal? The officer could be charged for e.g. coercion or as an abettor. But, is entrapment itself illegal for the officer? Do officers who commit entrapment get charged with a crime or penalized somehow?

Answers for different countries and legal systems are welcome, but, I understand that most potential answers will be from the US, and that's okay. The US has a great legal corpus and I enjoy reading about precedent, especially from the SCOTUS.

ARGYROU MINAS
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It depends on where you are. In the US, entrapment is a defense to a criminal charge. There is a threshold question: is "solicitation" sufficient encouragement, there must be "inducement" by the government agent which is

at least persuasion or mild coercion... pleas based on need, sympathy, or friendship... extraordinary promises of the sort 'that would blind the ordinary person to his legal duties' such that 'a law-abiding citizen's will to obey the law could have been overborne', or that the government created 'a substantial risk that an offense would be committed by a person other than one ready to commit it'"

Any person can be charged with the crime of "solicitation" (RCW 9a.28.030 in Washington), which however pairs some sort of request with a reward (money or other valuable thing). In Nevada, solicitation refers to a person who "counsels, hires, commands or otherwise solicits another", but also the crimes are limited to kidnapping, arson and murder. A police officer is not rendered immune from criminal prosecution just because he intended the criminal act to have a "good outcome" such as leading to the criminal conviction of a bad person. But whether what he said is a crime depends on what the officer said, and what the laws of that state are.

user6726
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Entrapment of itself, is not illegal

However, it is likely that in using entrapment, police may commit other crimes

The leading case on point is Ridgeway v The Queen. Unlike the US, evidence obtained though state wrongdoing, including entrapment, is not automatically excluded but may be excluded at the discretion of the judge.

When deciding the matter of Ridgeway, the High Court of Australia held that there was no practical defence of entrapment. However, the court did recognise that as a matter of public policy, courts need to exercise their discretion to exclude any evidence of an offence that was brought about by the unlawful conduct of law enforcement officers. This discretion exists to discourage unlawful conduct by police and to preserve the integrity of the administration of justice.

In the Ridgeway decision, the High Court ultimately held that the evidence which established that the heroin had been illegally imported should be rejected. Their Honours drew attention to the ‘calculated’ and ‘grave’ nature of the AFP’s actions, especially that:

  • their actions constituted an offence in that they allowed the heroin to be imported;

  • the police officers involved had not been prosecuted despite having also committed an offence;

  • there was no evidence of any official disapproval or retribution; and

  • the AFP’s objective would have been achieved if the evidence were admitted.

The court weighed these factors up against the public interest of a finding of guilt against Ridgeway. It determined that the public interest could be satisfied by the availability of a variety of offences that the offender could be prosecuted for that did not involve illegally importing the drug.

As you can see, it was open for the police to be charged with importing heroin but not with entrapment.

Dale M
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