A Short Summary of "Agent Provocateur"
PhD Dissertation 1986
by
John Peter Andersen, Denmark. Email: divbrug@stofanet.dk
The Book was published in 1986 by under its Danish title
"Agent Provocateur - et etisk og juridisk problem" by the
publishing house Århus Universitetsforlag, Denmark.
CHAPTER 1: THE PROBLEM.
The problem of the agent provocateur is ancient. Since the
dawn of organized police forces, government temptation and
inducement to commit crime have been recognized as a problem
of ethical philosophy demanding special attention to the
issues of culpability and liability.
In the days of royal absolutism, the method was employed as
a means to suppress political opposition to the regime in
power. This practice was highly responsible for the
tarnished reputation as a totalitarian tool of suppression
that undercover investigations traditionally have had, well-
known from George Orwell's "1984" where O'Brian, a secret
agent of the thought police, shrewdly indulged the growing
dissatisfaction of Winston Smith and ultimately induced him
to engage in unforgivable crimes against the State.
In Danish law, it is the severe drug crime of recent decades
that has revitalized this method of undercover police
investigation. Drug crime is a victimless crime. No
individual victim steps forward and draws the attention of
the authorities to the reality of the crime, and
investigations often begin solely on the initiative of the
police. Due to these reasons, the use of agents posing as
buyers on the illicit drug market (for the purpose of
exposing sellers and dealers) is a direct strategy to strike
at the drug suppliers. While not solving the problem of drug
abuse, this method may help discourage the drug incentive by
reducing the supply.
This method, however, is not without problems. It leads
directly to fundamental ethical notions created and refined
down through centuries of our criminal law concepts of guilt
and responsibility. Can a man be blamed for an act that he
otherwise would not have committed had an agent not enticed
him by scheme and device? Furthermore, how and under which
criteria is it established that the offender would not have
committed the crime were it not for the presence of the
agent?
A broader problem has to do with the government deception
embodied in this method. In western political philosophy,
the general idea is for the authorities to conduct their
business in the open and not deceive the public in the course
of their duties. Openness in public administration is a
vital ingredient in the very idea of a democratic society
based on the rule of law. The absence of such openness is a
characteristic of totalitarian regimes where the government
does not share its secrets with the people, nor does it
abstain from enforcing its laws and directives by using
secret police and closed court proceedings.
A systematic use of the undercover method in certain
selected areas will indubitably enhance the law enforcement
effort dramatically since the method penetrates the strategic
shield of victimless crime.
This may divert attention from some of the critical aspects
of the method. In order to avoid negative ethics of this
nature, the method should be equipped with countervailing
guarantees. Deception in the investigation demands openness
in the subsequent court proceedings, where the results of the
deception serve as evidence in the criminal prosecution
against the exposed offender.
CHAPTER TWO: LEGAL THEORY.
Since "Agent Provocateur" is the first Danish book on the
issue of undercover police agents, it attempts to give the
reader a complete picture of the scattered contributions to
the problem that exists in current legal literature.
The chapter on legal theory offers a chronological
exposition of the sources beginning with Ørsted who -
in line with other earlier writers as Bornemann, Goos, and
Lassen - only touches the issue as part of the doctrine of
complicity. The early authors' examination of complicity is,
however, often so penetrative and detailed that valuable
suggestions can be found with regard to the problem of agent
provocateur.
Torp probes the problem and splits it into two separate
questions: Is the agent liable as an accomplice when he
induces his target to engage in crime? Is the offender
liable when his crime occurred in response to the agent's
inducement? Torp solves the first question by the device of
intent, whereas it is concluded for the second question that
inducement to crime does not constitute a valid defense. The
same opinion is adopted by Krabbe.
Hurwitz has a couple of short remarks to the effect that
this method of undercover police inducement to crime is
impermissible. It is not quite apparent from his comment if
this judgment is addressed to the method as such or only
covers the ethically dubious cases where the agent has
instigated a criminally nondisposed person to engage in
crime.
Extensive discussion of the problem in recent years can be
found in a debate between Kallehauge, Nissen and Rothenborg
in a series of articles in the Weekly Law Reports from 1976
to 1979. These articles deal with use of this method in drug
crime and discusses a number of requirements to be imposed on
the method to make it reconcilable with general principles of
criminal law and procedure.
The most thorough analysis to be found in periodic
literature is a 1984 paper, "Agent Controlleur," written by
Dr. Hans Gammeltoft-Hansen. Dr. Gammeltoft-Hansen presents
an elaborate conceptual model for fitting the problem of
undercover agents into the framework of criminal procedure.
This model was the foundation for the 1984 law proposal on
undercover agents from the Minister of Justice.
In his paper, Dr. Gammeltoft-Hansen also distinguishes
between ordinary investigations and undercover agent
investigations. The latter is characterized by the fact that
the police allows an undercover agent to pose as a civilian
during the criminal act.
A demarcation line between legal and illegal undercover
investigation is also presented. The agent's activities
become illegal if his conduct interferes with the
constituents of the crime, the actus reus.
Is the use of undercover agents tantamount to an
investigative intrusion into protected liberties, as is the
case with wiretapping and search & seizure? In Gammeltoft-
Hansen's opinion, it is not. The reason is to be found in
the simple facts. Wiretapping and search & seizures on the
part of the police comprise conduct that is unlawful without
a legal warrant to the contrary. Conduct which is covered by
a actus reus description in the penal code. Wiretapping is,
objectively considered, an infringement of the privacy of
communication. The searching of houses is, objectively
considered, an infringement of the right to be secure in
one's own home. The use of an agent provocateur does not
constitute a similar conflict with a penal section.
Generally, there is no shield provided by law that protects
one from being intentionally enticed or tempted by an agent
to commit a crime. As discussed at the conclusion of chapter
two, the section on criminal complicity of the penal code
does not offer any credible argument against this
interpretation.
CHAPTER THREE: CASE LAW.
This chapter provides an overview of Danish case law on the
issue of agent provocateur in the criminal investigation.
The cases are few in number, but do contain some elucidating
points. A selection of the cases are presented with points
of interest commented on in the main text.
Furthermore, the chapter presents an exposition of more
recent cases from the area of drug crime where agents have
played a role in securing evidence for the prosecution.
Except for a single 1981 decision from the High Court for
the East of Denmark, the material does not contain any
examples of acquittals for crimes exposed by the intervention
of an undercover agent.
CHAPTER FOUR: LEGISLATION.
This chapter examines the legislative steps taken on the
issue of undercover agents, which started with the 1981
proposal from the party Venstresocialisterne. Under this
proposal the police were not allowed under any circumstances
to provoke or to participate in criminal acts. Although the
proposal stirred much debate in Parliament, it was not
adopted.
In February 1985, Ninn-Hansen, the Minister of Justice, put
forward his own proposal on the use of police agents in the
criminal investigation.
The proposal consisted of a handful of sections defining the
concept of undercover police work, describing certain opening
requirements for such work and setting a dividing line
between legal and illegal police enticement - the so-called
"provocation limits." Furthermore, the proposal has rules on
the status of the agent and on the subsequent court
supervision with the legality of the operation.
The chapter examines in a concentrated form the contents and
background motives of the proposed code and follows the
proposal on its way through Parliament up to the end of the
session in the summer of 1985.
CHAPTER FIVE: THE CONCEPT OF PROVOCATION.
In this and the following chapters, a renewed analysis and
evaluation of the agent provocateur problem is developed.
Police encouragement of crime, termed "agent provocation," is
depicted as an instance of deceptive investigation.
Deceptive investigation is characterized by the fact that
the police, by means of a strategic cover, brings the
investigation close to target in order to monitor the
evolvement of the crime, thereby securing evidence against
the perpetrator. The concept of deceptive investigation is a
type concept (i.e. a concept describing the essential
features of a class of facts) embracing a number of various
investigative models. Agent provocation is at the central
core of this concept. The deceptive maneuver is brought
about by the agent in his interaction with his target, the
latter being deluded to believe that the agent is a criminal
co-conspirator. Away from the central zone of the concept is
the decoy operation. The deceptive element in the decoy
operation depends on the offender's own interpretation of the
artificial situation set up by the police so as to make him
believe that it offers a genuine opportunity to commit a
criminal act. The classic example of the decoy technique is
a plainclothes policewoman posing as a potential victim in
order to trap a habitual mugger. In the outskirts of the
concept are a number of police actions where the deceptive
element does not (as with agent provocation) derive from a
direct playacting with the offender, or (as with decoys)
arises out of a scam situation, but the fact that the police
have established means of surveillance and control, thereby
securing evidence against the potential transgressor in case
he engages in criminal conduct. Examples are clandestine
radar surveillance of a traffic road or automatic detection
of the source of false emergency calls.
The primary ethical consideration in the use of police
undercover agents turns on the possibility that the agent may
seduce his target to commit a crime that the target would not
otherwise have committed. In other words, the target is
transformed from an honest and law abiding citizen into the
perpetrator of a crime that he didn't previously intend to
commit.
If this is so, the investigation has not detected a crime,
but has created one. Such a wanton act of persuasion is
possible with agent provocation because the agent is able to
directly influence his target in favor of the criminal
enterprise.
Decoy operations are different. The object of a criminal
attack is exposed, but the initiative to attack must come
from the perpetrator. The basic decision is his to make.
The police have set up only the external scene of the crime
without exerting any framing influence on the actor's intent.
The distinction between these two investigative models -
both off the realm of deceptive investigation, but with
distinct legal policy attributes - must derive its basis from
the very connection established during the investigation
between the agent and the offender. A distinguishing mark is
proposed under the label "contact." Contact is established
when the agent ventures into criminal negotiations with his
selected target on a specific enterprise. The contact may be
depicted as a scheme of crime advanced by or acceded to by
both the agent and target. The contact in this specific
sense comprises a direct interference with the offender's
volitional and performative relationship to the crime. This
is in contrast to a decoy operation where the arrangement
only serves as a setting for a potential criminal act
previously performed by the perpetrator.
On the basis of this distinction, a number of examples are
described in order to elucidate the concept of agent
provocation. Differences and similarities in comparison with
the proposed code from the Minister of Justice are discussed.
CHAPTER SIX: DECOY OPERATIONS.
In Chapter five of the book the concept of agent provocation
was depicted and its essential features expounded to mark the
distinction to decoy operations. In Chapter six the analysis
and reasoning are further elaborated by shifting the
viewpoint directly to the decoy operation model. It is shown
through a number of examples that the notion of contact
signifies an essential difference between agent provocation
on one hand and decoy operations on the other hand.
Gammeltoft-Hansen's view on the relationship between
undercover agents and decoys is examined. It concludes that
the "initiative criterion" developed by Gammeltoft-Hansen
does not furnish any valid reason to conjoin the two
investigative techniques in the same logical category.
It has been said that decoy operations in contrast to agent
provocation are not covered by the actus reus description on
complicity in the Danish penal code. In Report No. 1023/1984
on the use of undercover agents in the police investigation,
this difference is regarded as an explanatory vehicle for the
view that decoy operations should be exempted from the
legislation proposed. The premise, however, cannot withstand
further analysis. Sometimes decoy operations may compromise
a police participation in the criminal event that properly
must be said to be covered by the actus reus of complicity.
This is the case, for example, if the police secure the
cooperation of a courier to deliver a known drug item to an
unidentified recipient in order to expose him when the item
is collected (such as from a deposit box in a railway
station). Decoy operations will only be outside the scope of
complicity if the decoy poses as a victim. But decoy
operations do not always have to have this character. By a
number of examples it is illustrated that decoy operations
may likewise be conducted with regard to crimes where the
legislative aims have to do with the wider interests of
society.
Not only can agent provocation and decoy operations suffice
for the actus reus requirement of complicity, but both
investigative techniques may also be covered by the actus
reus of specific crimes.
It is concluded, therefore, that no exact conceptual model
for both investigative operations can be derived from the
substantial notions of criminal law.
CHAPTER SEVEN: TECHNICALLY POSTPONED POLICE INTERVENTION.
Chapter seven focuses on the investigative strategy well
known from the area of drug crime - the technically postponed
police intervention. It occurs when the police, for the sake
of the investigation, choose to postpone intervention into a
criminal chain of events until reliable evidence against the
main participants has been gathered.
Such operations raise questions of if and to what extent the
police are allowed to rely on nonintervention, though
intervention is fully justified, in order to promote the
goals of the investigation.
The Act on Court Procedure takes the general position that
police activity should begin when a crime has been committed.
Although there is no explicit demand that such activity be in
the form of an arrest, the general duty and responsibility of
the police suggests that law enforcement should begin once
the required basis is at hand.
Technically postponed police intervention, as exemplified in
controlled delivery of intercepted drugs, is considered a
permissible police strategy in most European countries. A
similar view must be assumed under Danish law when the
operation as a whole meets sound investigative requirements.
If, however, the passivity of the police exposes a third
party to danger and injury, the postponement cannot be held
justifiable. In such cases, a general preventative view
demands that intervention must be given priority over any
investigative benefits there may be in a postponement.
CHAPTER EIGHT: QUASI-CONSENT.
In Chapter eight a special problem is addressed. In certain
undercover operations a question may arise if, due to his
collaboration with the police to catch the offender, the
complaining party forfeits his right to bring charges against
the offender. This may occur if, by his actions, he incurred
a legally binding consent to all or part of the crime. If A
entices B to steal his car, B may obviously object that A
consented to the asportation so that B cannot be held liable
for consummated larceny (but only for putative attempt under
Danish law). If one adopts this reasoning, the idea must be
termed "quasi-consent"- a consent derived by interpretation
of A's contribution to the criminal act that has targeted
himself to be the party endured.
The problem is examined from different angles. One view
that is particularly probed is the traditional opinion that
such a consent should not be binding in the criminal law
context because it is but a pretension. It is concluded that
the possibility cannot be dismissed that in certain cases it
may be necessary to consent to a crime in a legally binding
fashion in order to expose the perpetrator.
CHAPTER NINE: INFORMANTS AND INFILTRATORS.
Chapter nine addresses such investigative steps as the use
of informants and infiltration. A more precise description
of these measures is attempted and the question of their
legality is discussed.
The use of informants can be regarded as lawful when the
information passed on to the police by the informant does not
infringe upon any obligation of confidentiality or constitute
a false accusation.
The term infiltration is somewhat weak. It is suggested to
regard infiltration as but a tactical maneuver placing an
investigative source close to the persons targeted about whom
intelligence is being sought. Infiltration means that a
police actor has been placed in - or someone recruited
from - the circle of persons under investigation. Whether
the operation will come to embrace agent provocation, decoy
tactics and obtaining of information depends on the
subsequent steps taken by the police and the infiltrator.
The situation is similar to that of "dormant moles" - foreign
spies living a normal and inconspicuous life behind enemy
lines and awaiting a signal to go into action.
There is nothing unlawful in infiltration as such. If,
however, the infiltration is but the first step of government
surveillance and control of activities within a protected
area, (such as political activity) then the picture changes
and the infiltration must be considered impermissible.
CHAPTER TEN: THE CRIMINAL LIABILITY OF THE AGENT.
A considerable part of the discussion on the agent
provocateur issue has focused on the question of the criminal
liability of the agent. This problem has come to the
frontline because the issue of police provocation to commit
crime has traditionally been rooted in the doctrine of
complicity. In addition, the controversial character of the
agent provocateur has contributed to drawing the problem into
the limelight as a kind of touchdown for the legitimacy of
the method of agent provocation. This is unfortunate, even
if the agent does not technically become criminally liable,
the method may be deemed undesirable in view of broader
considerations on criminal procedure and public policy. Even
if the agent does specifically become criminally liable, the
method may still be desirable in view of various
considerations on investigation and law enforcement. The
fact that it is unlawful to deprive someone of his freedom
evidently cannot determine if society should concede to the
police the right to make arrests as part of the police work.
The chapter explores a distinct legal reasoning that has
been offered in favor of divorcing completely the liability
question from the issue on agent provocateur.
It is the idea that the agent cannot be criminally liable
because his act is covered by the general restrictive
principle of criminal law - the principle of substantial
nontypicality - it is because of the special circumstances of
the agent's act that it does not fall within the scope of
actus reus.
The meager case law does not sustain this view. Although it
must be conceded, of course, that the act of the agent is one
of law enforcement, the purpose is to expose a criminal and
not to commit a crime.
But the view is open to a most fundamental objection. If
the very fact that the law enforcement purpose behind the
agent's act should take it outside the purview of criminal
law, the entire philosophy behind the traditional warrant
requirements of police work would be swept aside or by the
very same reasoning. If it is to be taken at face value, the
idea that substantial nontypicality can exempt an agent from
criminal liability must be as valid for the whole range of
traditional police intrusions into protected areas
(wiretapping, search & seizure, etc.). This inference is
untenable and runs counter to prevailing doctrine.
Another objection arises from the fact that the method of
agent provocation is a government measure. The doctrine of
substantial nontypicality is a last resort for rare and
unpredictable acts committed under circumstances of a rare
and unpredictable nature. In contrast, the use of police
undercover agents is a highly planned and calculable
undertaking that clearly should not derive its juristic basis
from a nebulous construction intended to serve as an ultimate
escape clause in out-of-the-way exceptional cases where the
infiltration of criminal liability is without support in
common moral notions of fairness.
CHAPTER ELEVEN: ILLEGAL PROVOCATION.
The last chapter of the book is devoted to the question of
legal and illegal provocation - the so-called provocation
limits. It has been argued that a distinction between legal
and illegal provocation is without interest because the
method as such should be considered illegal in absence of a
specific legislative basis. Be it conceded that the agent
provocation does hold many critical aspects, the method
cannot be categorized as an intrusion into a sphere of
privacy protected by law, thus only to be performed pursuant
to a warrant. It is a different matter that the method,
being of controversial nature, should not be left with police
discretion, but subjected to proper legislation setting
workable provisions for its use.
Anyway, even without legislation a distinction between legal
and illegal provocation must be assumed to exist-expressed in
the well-known phrase that the agent must not induce his
target to commit a crime he would not otherwise have
committed.
The basic ethical issue behind this phrase - admittedly
weak - is open to two different approaches. The act of
provocation can be tried under an object standard according
to which the act is unlawful if the conduct of the agent is
of a nature generally likely to lead otherwise law abiding
citizens into crime. Or, alternatively, the problem can be
solved on a subjective model focusing exclusively on the
offender involved - was he ready and willing to commit the
crime prior to the contact with the agent?
The first view turns on the factual conduct of the agent,
objectively considered, whereas the second view concentrates
on the subjective attitude of the offender towards the crime
in question. The standards have different aims and may, as
demonstrated in the book, lead to irreconcilable results.
Because of this, it becomes important to choose which
criterion to use for the test of legality. The criterion
adopted by the proposal from the Minister of Justice clearly
patterns a subjective approach.
The subjective criterion, as a guide for the legality of the
provocation, cannot stand alone. It has to be sharpened so
as to clarify its relationship to the general notions of
criminal law. It is a delicate task, however, to describe
exactly when the agent is targeting a person whose
willingness and disposition to the criminal enterprise are so
indisputable that the agent's participation serves but as a
convenient opportunity for the would-be criminal to commit
the crime.
In legal thinking, various devices have been suggested to
cope with this problem. Was the violator a habitual offender
usually engaged in this kind of crime? Was he in fact
willing and able to perpetrate the crime? These
considerations address the central notion that the method of
provocation should be restricted to professional criminals
only who are engaged in ongoing illegal activities - persons
who do not lack either willingness, ability or experience in
conducting the sort of illegal business that the agent is to
expose in order to have the law enforced against the
violators.
The doctrine that the agent is not to bring about any crime
that would otherwise not have been committed has caused a
number of misunderstandings. It has been maintained that it
is unverifiable whether the offender would have committed the
crime by himself and without the solicitation from the agent.
This view is a fallacy. Hypothetical statements concerning a
different outcome of a chain of human acts are neither
deprived of logical meaning nor do they evade verification.
Ethics, law and numerous theories within social science rest
on the simple and well-tested experience that it is possible
to make valid assumptions as to how a person would have acted
if some intervening factor had not disturbed his course of
action.
The same principle holds for agent provocation. If a man
habitually sells drugs, it is reasonable to assume that the
batch he sold to the agent would have been sold to another
customer if the agent had not posed as the buyer.
A similar fallacy of thought can be found in the assertion
that the agent is a necessary cause or factor for the crime.
Without the agent, no crime. Again, the proper
interpretation is that the agent is not necessarily a
determinative cause or factor impelling his target towards
the crime.
Having disposed of these logical pitfalls of the agent
provocateur problem, the attention is shifted to the proposed
code on undercover agents.
An interpretation of the central sections is presented. It
is discussed if the method should be linked to a requirement
restricting its use to certain crimes. The code's notion of
criminal attempt is examined. It is argued that attempts
that are not criminal as well as situational crimes should
not warrant the use of agent provocation.
All the problems have to do with the description given of
agent provocation in the code. The agent is defined through
his activity. It is possible, therefore, that a private
person loosely associated with the police embarks on
activities that duly must be described as agent provocation.
Under the subsequent prosecution against the exposed offender
it may be on open question whether the activities of the
private agent are attributable to the police or not. If they
are, the activities performed must comply with the
requirements of the code.
A final aspect is the effect of illegal provocation. The
close connection between the investigation and the crime
investigated - knit together by the contact between the agent
and the offender - means that the issue of criminal liability
cannot be dealt with separately without taking into account
the legality of the agent provocation. Again, divergent
avenues are open. One is to say that if the agent has
overstepped the boundaries, basic notions of justice require
that the indictment should be quashed because it rests on
arbitrary and artificially manufactured evidence. This view
is of a procedural nature.
A substantial view would be to hold that if the provocation
is illegal, the accused party cannot be held liable under the
standards of criminal law. The crime is a fabrication
attributed to an actor basically unwilling to commit it. He
must be acquitted. None of these legal solutions are
exhausted. The commissional report behind the proposed
legislation points to alternatives such as prosecutorial
dismissal, mitigation or suspension of sentence.Get more detail about
Agent provocateur: Et etisk og juridisk problem (Danish Edition).
