Could entrapment be justified in the criminal prosecution of child pornography cases?

Abstract

The research question rests on two limbs. Firstly it will provide a proper legal definition and analysis of the notion of entrapment and agent provocatuer as understood in foreign and Maltese Law. The second limb of the question addresses the phenomenon of child pornography within the context of a modern digital reality with its attendant legal/social consequences. With the emergence of cybercrime, police investigations in the areas of child pornography and child luring cases are increasingly resting on methods considered potentially selfincriminating. Law enforcement officials feel the use of entrapment is necessary in specific situations. The project will identify the causal link between solicitation and the crime and when do police overstep the legal limits in their efforts prosecuting potential criminal offenders. The term paper seeks to analyse Maltese legislation on the issue arising from legislative acts from 2002 onwards with special reference to the Cimininal Code Chapter 9 articles 208A et seq. Reference is also made to foreign and domestic case law. A section will be devoted to European Court of Human Rights (ECtHR) judgements on police entrapment in general, its limitations and legal justifications. One will consider if there is an actual defence against child pornography prosecutions in cases where entrapment has clearly been adopted. In conclusion the paper will propose some legal initiatives that may be adopted within the Maltese legislative framework that will aid domestic courts evaluate better pleas of entrapment when raised by the accused in child pornography prosecutions.