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Agent provocateur is French for “inciting agent”, an entrapment situation where a person is enticed, incited or encouraged into committing an offence that he would not have otherwise committed.

How does it relate to criminal law?

The police frequently use undercover police officers in relation to drugs offences. An officer becomes familiar with local drug users and suppliers, and evidence for supply-related offending is obtained.

If the officer asks the suspect for drugs is he an agent provocateur, is he an “inciting agent”?

Some people would try to argue he is and that they wouldn’t have committed the offence unless he had asked them. The difference is between the officer causing the offending and merely providing an opportunity for it to be committed with the officer rather than someone else.

What have the courts said, and is entrapment a defence?

Entrapment is not a defence, but it could be argued that the case should not be brought at all.

This would involve a consideration as to the degree of persuasion, the gravity of the offence. The question of exclusion of evidence may also arise.

In the case of Shannon it was said that if there is good reason to question the credibility of the evidence given, then the judge may conclude that the evidence should be excluded.

Two leading cases involved the supply of drugs to an undercover police officer. “L” argued that he had been lured into the supply.

The Court held that it would be acceptable if officers were to provide a person with an unexceptional opportunity to commit a crime and the person then freely took advantage of that opportunity.

The situation would be quite different and would be an abuse of process if officers instigated an offence by offering inducements and luring a person into a course of action he would not normally have followed.

In “G’s” case the actions of the officers, by contrast, were said to go beyond those of undercover agents as they instigated the offence, there was no evidence to suggest that without their intervention it would have been committed.

In a case involving an undercover journalist (Shannon v UK), it was said that an offender was not entrapped when he supplied drugs to the journalist as he had not been placed under any pressure to do so.

Do undercover officers have rules to follow?

There is an Undercover Operations Code of Practice issued jointly by all UK police authorities and HM Customs and Excise.

Contact one of our criminal law solicitors to discuss issues of entrapment.

We are experts at assessing evidence and putting forward legal arguments. We can advise you as to whether entrapment applies to your case or not.

As a result, if you are arrested or know that the police wish to speak to you about an offence of then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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Local newspapers will often publicise cases that have been before local Magistrates’ Courts.  It will often seem that the sentences handed out in some cases are entirely disproportionate to the offences that vulnerable defendants have been convicted of.  This may be due to circumstances that we are unaware of, or because of a particularly harsh sentencing bench, or because the defendants appeared unrepresented before the court.

Such severe sentences are not inevitable.  At a recent Saturday morning court, Nottingham partner and crime solicitor Nick Walsh was able to secure constructive disposals for two of his vulnerable clients.

Serial shop lifter receives conditional discharge

Nick’s first client was charged with  five shop thefts with a total value of £760.  The evidence was strong and he had made admissions with the benefit of our free and independent legal advice in police interview.

He had a long history of offending and had been to prison four times in the last two years.  He had only been released from custody shortly before the new offending.

Due to his vulnerabilities he was very volatile when Nick spoke to him.  He was a long standing client of Nottingham crime solicitor Graham Heathcote and initially only wanted Graham to represent him.  At one stage he intended to go into court unrepresented if Graham could not deal with his case.

Nick’s manner is such that he was able to calm him down and take instructions about the miserable circumstances that he had endured since release from prison.  He had remained homeless, and as a result of sleeping rough had suffered abuse and assaults.

Despite the number of offences and his record of convictions Nick was able to persuade the Magistrates to deal with him by way of a conditional discharge.

Vulnerable drug user sentenced to community order

The second of Nick’s vulnerable clients on that morning was a female charged with several thefts, possession of heroin and breach of her post release supervision.

She had received two custodial sentences for thefts within the nine months prior to this offending.  Before that she had the benefit of other community orders that involved Drug Rehabilitation Requirements.  All of these interventions had failed.

Our client had been kept for court as the police refused bail, believing that she would fail to attend court or commit further offences if bailed.

Fortunately Nick was able to speak with the duty probation officer.  As a result of that discussion, Nick was able to mitigate and persuade the Magistrates that his client ought to be given a further opportunity to comply with a community order.  A further Drug Rehabilitation Requirement was imposed without the need for a pre-sentence report from the probation service.

Choose the right solicitor for your case

As we have a contract with the government to permit us to provide expert legal advice and representation under the legal aid scheme.  This means that our advice in the police station will always be free of charge to you in the police station.

There are many advantages to seeking advice in the police station and you can read about those here.

Many of our vulnerable clients will be also be entitled to legal aid in the Magistrates’ Court.   Nearly all will be eligible for legal aid to ensure representation for cases before the Crown Court.

You can read more about these types of legal aid here.

In the cases at the police station or the courts set out above, all of our clients had the benefit of free legal advice.

Our solicitors regularly deal with the most vulnerable clients within our community.

An example from our Chesterfield office can be found here.

You can read a second case study, this time from our Nottingham office here.

Contact us

You can find details of your nearest office here.

Alternatively you can use the contact form below.

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Do I have a right to bail?

This article refers to the position relating to the right to bail for adults.  The situation in relation to youths is different.

As an adult, the starting point is that you have a “right” to be granted bail. This right can only be taken away in certain circumstances. These circumstances are where the court has substantial grounds to believe that if you were granted bail you would:

• Fail to surrender;
• Commit further offences on bail; or
• Interfere with witnesses

In some rare instances bail can be denied for a defendant’s own protection or welfare.

What if I am already on bail?

 If you are charged with an offence alleged to have been committed whilst on bail, then you do not have this automatic right to bail.

In that case you do not have to be granted bail, but you can still be if you persuade the court that you will not fail to surrender, commit further offences or interfere with witnesses.

If you appear in court following a failure to surrender at an earlier hearing you also lose the automatic right to bail.

Does it matter if I am a drug user?

 If you have tested positive for class A drugs and refuse to co-operate with treatment you may not be granted bail unless the court is satisfied that there is no significant risk of an offence being committed whilst on bail.

Will I have conditions on my bail?

The court can grant bail unconditionally or they can impose bail conditions if they are satisfied that those conditions are necessary to address any risk that you would fail to surrender, commit further offences or interfere with witnesses.  Any conditions imposed have to be both necessary and proportionate.

Examples of bail conditions that are often imposed are:

• curfew
• residence
• not to contact named witnesses
• not to go to a specific area
• reporting to the police station

You or a person on your behalf could also agree to pay money into the court which would be forfeited if you subsequently failed to attend court.

What if the offence isn’t serious?

 You should be granted bail if there is no real likelihood of a prison sentence if you plead guilty or are convicted. As always there are exceptions to the rule. You may still find yourself in custody if the court is satisfied there are substantial grounds for believing that you would:

Commit an offence while on bail by engaging in conduct that would, or would be likely to cause-

• physical or mental injury to an associated person; or
• an associated person to fear physical or mental injury.

Commit further offences if the offence was committed whilst on bail;

Fail to surrender, if you have previous convictions for this;

If you have been arrested for breach of bail for this offence and there is a fear of failure to surrender, further offences or interference with witnesses.

Non-imprisonable offences and bail

If you are charged with a non-imprisonable offence you can only be denied bail if you have previously failed to surrender and there is a belief you would do so again or following a breach of bail.

Are there any other reasons I could be kept in custody?

You can also be kept in custody for your own protection or if you are already a serving prisoner.  Also, if there is insufficient information to decide about bail you can be kept in custody for the purposes of obtaining that information.

The magistrates do not have the power to grant bail for anyone charged with murder or treason.  For an offence of manslaughter, rape or a serious sexual offence where there is a previous conviction for one of these offences you can only be granted bail if there are exceptional reasons to justify it.

Contact a criminal law specialist to discuss bail

This article is intended to be an overview of the law and does not cover all potential issues that can arise.  Neither does it discuss the best way to present an application for bail, nor the information that may need to be gathered to ensure your best bail application is made to the court.

To be able to put forward the strongest argument for bail you should be represented by an experienced solicitor.  We will be pleased to accept your instructions.  The contact details for your nearest office can be found here.

Alternatively please you the contact form below.

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Despite very late contact with his client, accredited police station representative Rob Lowe was still able to provide free police station advice to secure a restorative justice outcome rather than a police caution.

Negotiation with police under legal aid scheme

Rob was called by a client who had already been interview in relation to allegations of affray and assault occasioning actual bodily harm.  Unfortunately, he had chosen not to seek our free and independent legal advice at that stage.

It appeared that he had made admissions to the assault in this police interview. He had been released under investigation but the police had contacted him some time later as they intended to give him an official police caution to end the matter.

Unfortunately, our client’s work involved him being a frequent visitor to the United States of America.  Understandably he had concerns that a caution might prevent him form getting into the States in the future.  As a result, he was reluctant to accept the caution.  He also raised an issue that he perhaps had not made admissions and had told the police that the complainant was the aggressor.

Rob travelled to Sheffield from our Chesterfield office to go to the police station with his client.  This allowed him to speak to the police officer dealing with the case to determine whether a police caution was an appropriate way to deal with the case.  Was the evidence there to support the offence?  Had his client actually admitted the offence?  If there was an admission was a restorative justice option available instead of a police caution?

Having spoken to the officer, Rob concluded that the police officer was acting appropriately by offering a caution.  There was evidence from the complainant and photographs of injuries.  His client had made an admission to an assault, albeit on a limited basis.

Restorative justice outcome negotiated

Instead of simply accepting the caution, Rob was then able to make successful representations that he case be dealt with by way of a restorative justice disposal.  This was agreed by both the client and the complainant in the case.  The outcome simply involved our client keeping away from the complainant.

This outcome meant that our client did not receive a criminal record and does not need to worry about future business trips to America.

Speak to a specialist police station adviser for free

As we have a contract with the government to permit us to provide expert legal advice and representation under the legal aid scheme.  This means that our advice in the police station will always be free of charge to you in the police station.

There are many advantages to seeking advice in the police station and you can read about those here.

Read more about the benefits of instructing our solicitors and litigators here.

You can find your nearest office here.  All of our phone numbers are answered 24 hours a day, 7 days a week, to allow you to seek our expert advice when you most need it.

Alternatively you can use the form below.

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In recent years legislation has been enacted to ensure that crimes demonstrating a hostility towards certain groups of people are treated more seriously than before.  If an offence is said to be racially aggravated, then you should expect a more significant sentence if convicted.

What does it mean for an offence to be racially aggravated?

An offence is racially aggravated if, at the time of the offence, you demonstrate toward the victim hostility based on his membership of a racial group or the offence is motivated by that hostility.

So, shouting racist abuse or making racist comments will make an offence racially aggravated.  An offence will also be deemed racially aggravated where no comments are made but the offence is committed against someone because of their race.

Offences as a result of hostility toward a religious group, rather than due to race, are treated in the same way.

The fact that the victim may be indifferent to any abuse is irrelevant to whether the offence is racially aggravated.

It is also irrelevant if the reason for the offence was unrelated to race. For example, abusing a doorman because he wouldn’t let your friend into a club in combination with racist language will be sufficient.

How does it affect sentencing?

Each offence in law has a maximum sentence attached to it.  For offences that are racially aggravated that maximum sentence is increased. For example, common assault carries six months imprisonment but the racially aggravated offence increases the maximum sentence to 2 years.  For assault occasioning actual bodily harm the maximum sentence increases from 5 to 7 years.

The starting point is to consider the sentence that would have been imposed for the offence if it was not racially aggravated after consideration of all the other aggravating or mitigating factors in the case.

The sentence will then be increased to take account of the racial aggravation.

The extent of the increase in sentence will depend on the level of aggravation. The court will consider whether the offence was:

• planned
• part of a pattern of offending
• deliberately set up to be humiliating to the victim
• committed in the victim’s home
• repeated or prolonged

Account will also be taken of any distress caused to other persons or the wider community and whether the offender was a member of a group that promotes hostility.

Does it have to be charged as being racially aggravated?

 Even if the offence isn’t specifically charged as being racially aggravated the circumstances can be treated as an aggravating feature in sentencing (O’Leary [2015] EWCA Crim 1306).

How can a criminal law specialist help?

As you can see such offending is treated seriously by the courts so it will be important that you seek early advice from a criminal law solicitor.

As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.