Court of Appeal holds no violation of ECHR, art 6 from undercover prosecution evidence


Re: R v Syed [2018] EWCA Crim 2809

The applicant wished to argue that decisive prosecution evidence in the case against the applicant from an undercover operation should be excluded pursuant ECHR, art 6. The applicant sought the certification of a point general public importance for an appeal to the Supreme Court, to determine the continued correctness of R v Looseley [2001] UKHL 53, binding on the Court, which held that the relevant English law on entrapment is derived from the common law.

Held: there is no arguable case of entrapment on the facts and, equally, no arguable case that there was any material difference between English law and the Strasbourg jurisprudence such as to cast any doubt on Looseley complying with ECHR, art 6.

However, the Court recognised that the burden of proof which the common law of abuse places on the defendant may be incompatible with ECHR, art 6.

Mark Summers QC was involved in this case.