Controlled delivery and entrapment vis-à-vis the right to a fair trial in drug trafficking offences

Abstract

The aim of this thesis is to explore the controlled delivery as a special investigative technique and define entrapment vis-à-vis the fight against drug trafficking in order to show that notwithstanding that the former may lead to the latter they are two distinct concepts. The procedure followed by the Executive Police and the role they play in such an investigation is one of the main themes. It demonstrates when an illegitimate use of this technique can possibly lead to entrapment whereby individuals feel that they have been incited, instigated or pressured to commit an offence with a further consequence of having their right to a fair trial as guaranteed under Article 6 of the European Convention on Human Rights violated. It also gives an overview of the case_law particularly from Malta, from the European Court of Human Rights, from the House of Lords and from the United States Supreme Court to show how they all deal differently with the issue of entrapment. Some jurisdictions elevate it to a defence and in others it may lead either to the exclusion of all evidence gathered through the illegitimate controlled delivery, to a stay of proceedings due to abuse of process or to a mere mitigation in sentence. The other main theme of this thesis relates to the general principles established by the Court in Strasbourg which should be followed by the member states when carrying out a controlled delivery and how to deal with a plea on entrapment when raised by the accused. Special emphasis is made on the fact that it is neither the controlled delivery nor the resulting entrapment which leads to a breach, but rather it is they way national courts deal with a complaint that puts them in the wrong.