Evidence obtained as a result of entrapment cannot be used against you in your criminal trial.
Prohibition of entrapment means that the police cannot openly or secretly incite you to commit a crime that you would otherwise not commit and then use evidence from the commission of that crime against you.
example If an undercover agent has given somebody illegal drugs and urged him/her to sell them, the evidence obtained through this activity will not be admissible in the court.
Undercover investigations
Use of undercover agents does not automatically mean that you have been incited to criminal activity. In certain situations, the police may use agents and informants to observe the commission of a crime and to obtain evidence in the process of its preparation or commission. These agents must be authorised to carry out their task through clear and foreseeable procedures. These activities must also be subject to independent authorisation and supervision. According to the Code of Criminal Procedure, such authorisation has to be given by the investigative judge.
example If an undercover agent is used to uncover a drug dealing networks, that agent’s participation must be authorised by a judge, and his/her actions must be properly reported and supervised.
In assessing whether you have been incited to commit a crime, the court must take into account a number of factors. Therefore, in assessing whether the police can be blamed for incitement, the court must determine:
- Whether the agents involved exercised such influence over you, that without their participation or assistance, you would not have committed the crime
- Whether there were well-founded suspicions of your criminal activity before their involvement
- Whether the agents initiated the commission of the crime instead of just joining an already commenced criminal activity
Incitement claim in trial
If you consider that you were incited to engage in a criminal activity by a police agent, you have to be able to make such a claim at the trial. To examine your claim the court must look carefully at the case file and request all the information that you cannot access about the investigative activity.