Entrapment

Entrapment needs to have a defence. It has been a request asked for a number of years. Indeed, many innocent people have had to endure the trouble of being criminally accused for a crime that they would never have committed had it not been for the extensive pressure placed upon them by undercover government officers. At the moment there is no defence awarded to victims of unfair trapping. There is however an exclusionary rule, which would exclude evidence gained from an unfair trap. But many academics argue that this rule is not good enough. There needs to be a defence of entrapment. Many human rights are violated with the use of a trap. Thus a careful line needs to be followed to ensure that a trap necessarily limits these rights. There is no doubt that the introduction of the trapping system has been quite successful in curbing crime. But there are still many instances when an individual who would not ordinarily commit a crime does so through peer pressure. The trapping system will be discussed in the essay. One will then be shown the positives and negatives of the trapping system. Human rights issues will also be discussed, as well as the opinions of various academics. One will be shown that although the trapping system has been monitored more closely since the introduction of the exclusionary rule, it is not enough to prevent innocent people from being convicted of crimes they would not otherwise commit. Thus entrapment needs to have a defence for it, to protect people rights and to ensure that only people who deserve to be convicted of the crime, be convicted, and innocent people be set free.

Entrapment has been a form of policing that has taken place since the early days of the gold rush. It has also been used as a form of policing since the existence of syndicates. These syndicates were groups of people who committed crimes of large magnitudes and did so for a living which was very successful. It was also becoming very difficult to catch such criminals because they were very good at being discreet and also because there not one but many criminals. Thus ordinary means of policing were proving to be fruitless for such crimes. Thus the trapping system was introduced. The trapping system involved the use of government officials going undercover. These undercover officers would then entice the suspects into engaging in illegal activities. Once the suspects fell for the trap, they would be arrested and charged. This form of policing has proven to be quite successful, in that it has led to convictions of dangerous syndicates. One does not see as many syndicates as one would have seen since the introduction of the trapping system. But problems have arisen since the trapping system was introduced. Undercover agents sometimes push the limits of enticing suspects. The result is that suspects that would not have committed such offences are forced into committing them. Reasons for this may include feeling sorry for the trapper, or gaining a special trust with the trapper. Thus an innocent individual may be pressured into committing an offence he of she would not have other wise have committed. Thus the need for a defence of entrapment has been asked.

If one has a look at the definition of the trapping system, one can will see that a trap is a "person who, with a view to securing the conviction of another, proposes certain conduct to him and himself ostensibly takes part therein. In other words he creates the occasion for someone else to commit the offence". This definition thus means that a government official will entice a suspected person, to commit an offence by creating an opportunity. To do this, the official must go undercover and pretend to engage in illegal conduct, for the sake of securing a conviction. Once the suspect has fallen for the trap, the government official will then arrest him or her and charge him or her with that crime. One could argue that the trapping system effectively creates a crime, which is false, and thus creates an offence. It could further be said that the government pushes the boundaries of its power, by engaging in criminal conduct. It has been submitted by academics that this form of policing is unethical in nature and is an abuse of government's powers. This has led to an investigation of the trapping system by the Law Commission of South Africa. In its report, the Law Commission submitted that they believed that the trapping system was a justified use of power by the government, in the quest to detect and prevent crimes. This is true, because without the trapping system, certain types of criminals would not have been brought to justice. There has been no doubt that the trapping system has been successful. Proof of this can be seen in various criminal law cases.

In the case of S v Aldridge and Another, undercover cops pretended to sell unwrought gold to two people. These people were suspected of buying unwrought gold for some time. On the 18th of August 1989, the two appellants purchased the unwrought precious metal. The two appellants voluntarily admitted to buying the gold, and they admitted to receiving the gold and retaining it. At the moment when they received the gold, the police then proceeded to arrest the individuals. They were thus convicted of contravening s143 (1) of the Mining Rights Act 20 of 1967. It was held in the in the court of law that where an accused buys unwrought gold through a trapping process, the fact that the selling of the gold was not serious, and that there was no serious intention of selling the unwrought gold, does not mean that accused has not bought the metal in terms of the definition of the term buying seen in s 143. Thus the trapping system was seen to be successful in bringing criminals to justice. Without such a system, the criminals would still be engaging in criminal conduct. But one needs to ask the question, what if the trap was set up for an individual or individuals, who were not interested in engaging in criminal activity, but did so through the pressures exerted on them from the trap? In such a case, the defence of entrapment needs to be included, so that those unfortunate individuals can be acquitted of a crime that they were unfairly coerced into committing.

In the case of S v Pule an accused was convicted in a magistrate's court on charges of fraud. The issue at hand was whether the accused had the necessary intention to defraud. The accused admitted to purchasing a radio and tape recorder. He had also made a cheque and forged another person's signature. The accused pleaded in his defence that he was acting as a police informer. He submitted that in order to infiltrate a syndicate, he had to engage in certain criminal activities. An important judgment was referred to in this case. In the judgment of S v Ganie and Others, the court