“Entrapment has won”- How sports stars should respond to media sting operations

Published 18 January 2017 By: Matthew McDonagh

Gavel in front of UK Flag

The former England Manager, Sam Allardyce’s, recent assertion that “entrapment has won” was a response to the continuing investigations of The Daily Telegraph into corruption in football that had led to the termination of his role as the England Football Manager.[1]

Allardyce’s role lasted a mere 67 days before he left by mutual consent. He had attended a meeting at the request of his friend, Scott McGarvey, a football agent. McGarvey was meeting a group of businessmen purportedly representing a firm of investors. McGarvey hoped that Allardyce’s attendance would impress the businessmen. In fact, the businessmen were undercover reporters from the Daily Telegraph. At the meeting, amongst other things, Allardyce suggested that it was possible to by-pass rules on the third-party ownership of players and that he knew of agents that were “doing this all the time.” The Daily Telegraph passed on the covert recordings of this conversation and other related matters to the Police and The Football Association (“The FA”).

Whilst Allardyce attempts to restore his reputation as the new manager of Crystal Palace, it now seems unlikely that he will face criminal charges arising from his general behaviour. However, it remains unclear if he will face disciplinary charges for not acting in the best interests of the game and/or was bringing the game into disrepute (see Rule E3 of The Rules of The FA[2]). 

This case does concern the use of evidence that has been obtained during a media sting operation and how might such evidence be used in any subsequent proceedings. An awareness of the criminal jurisprudence in relation to entrapment is necessary to understand how the courts and regulatory bodies will react to evidence obtained by the media in this way. Once the law is set out, this article seeks to guide those who might be caught up in a media sting operations on how best to protect themselves.

Accordingly, this article examines: 

  • How the criminal courts treat evidence adduced by entrapment:
    • The law on entrapment by the State (i.e. obtained by police);
    • The law on entrapment by the Media (i.e. obtained by undercover journalists as part of a “media sting operation”);
  • How disciplinary sports panels treat evidence adduced by entrapment;
  • A summary of key points;
  • Practical guidance on what to do if you or someone you represent are caught up in a sting. 


The criminal courts’ treatment of entrapment evidence 

In the criminal courts, there is no defence of entrapment and “Police sting operations” could be prosecuted in the normal way.[3] However, this potentially harsh approach was softened by Section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). This allows the court to exclude evidence proposed to be adduced by the prosecution where the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.[4]

In the exercise of their discretion to exclude the evidence the court will have regard to matters including the nature of the entrapment, whether the evidence consists of admissions to a completed offence or the actual commission of an offence, how active or passive was the police officer’s role in obtaining the evidence and whether there is an unassailable record of what occurred or any corroboration.

A Judge may take account of whether the police officer was acting as an agent provocateur in the sense that he was enticing the defendant to commit an offence he would not otherwise have committed. A further consideration for the judge in deciding whether to admit an undercover police officer's evidence, is whether the undercover police officer has abused his role to ask questions which ought properly to have been asked as a police officer and in accordance with the Codes of Practice (setting out police powers of investigation including arrest, detention and questioning) published in pursuance of PACE.

The courts now recognise that the more suitable remedy for a defendant prosecuted on evidence obtained by entrapment is to apply to stay the proceedings for an abuse of process.[5] The rationale for a stay may be based on a number of factors: [6]

  • The protection of the integrity criminal justice system as those enforcing the law should abide by the law;

  • It would be contradictory if those investigating crime initiated crime;

  • Reliance upon entrapment evidence brings the law into disrepute as those investigating crimes are supposed to protect citizens and our human rights;

  • Entrapment evidence contravenes our aspiration towards fair play and reasonableness.

The European Courts have also had some input into this area and have not been shy to find a breach of a defendant’s Article 6(1) rights. The Human Rights Act 1998 has undoubtedly reinforced the changes in the common law. The pre-disposition of a defendant to the criminal activity and the nature of the entrapment are all factors highlighted by the European jurisprudence.[7]

The overarching point is that – as far as the law is concerned - any concerns with entrapment evidence must be balanced against the difficulty of preventing the most serious of crimes and bringing the perpetrators to justice. This balancing exercise leaves a real discretion with the courts and must be exercised on a case specific basis.

The attitude of the courts to media entrapment is different. The courts are not concerned about having to protect citizens against the dangers of the State both investigating and prosecuting crimes. Here the evidence has been obtained usually by an undercover journalist, whose desire is to write a story and sell newspapers. The courts have not treated this evidence as they have “police” evidence and do not afford similar protection to the defendants who are prosecuted following such reporting. The conduct of the non-state agent [the reporter] would have to be so serious that “reliance upon it would compromise the court” before exclusion of the evidence or a stay might be appropriate. The courts consider that such a level of “commercial lawlessness” would be rare indeed.[8]

In the author’s view, the courts’ approach to such evidence will change. Mazher Mahmood’s recent downfall as the “Fake Sheikh” may have ramifications in the way that the media approaches these investigations. The author cross-examined Mahmood in 1998 in a counterfeiting conspiracy that included branded sports clothing. His manipulation of the sting operation in that case mirrored his actions that led to his recent conviction for perjury. In the author’s opinion, his sole desire was to sell newspapers and raise his own profile. There was no selfless desire to spotlight crime and corruption. He was prepared to bend the rules safe in the knowledge that he had a close relationship with the prosecuting authorities. He knew that he would not face prosecution for his activities within the sting operation. Furthermore, he had paid others to ensure their compliance in the investigation. The “support” of media entrapment by the police is just indirect entrapment by the state itself. The great power of the media in this sphere may ultimately lead to further regulation following The Leveson Enquiry and the actions of the Independent Press Standards Organisation.


How disciplinary panels treat evidence adduced by entrapment 

In the absence of any rule to the contrary, there is no requirement at common law that a disciplinary tribunal must observe the strict rules of evidence that pertain in the courts of law, and many tribunals make explicit provision to this effect.[9]

If evidence was obtained by State entrapment, there will exist the same arguments that are present in the criminal courts to exclude the evidence or ask that the prosecution is stayed as an abuse of process. However, the sports law panel is not concerned with the liberty of the subject but the protection of those involved in the sport it regulates and the public’s perception of that sport. Whilst every case will be fact specific, evidence likely to be excluded in the criminal courts or cases stopped as an abuse are quite likely to proceed in front of tribunals with the “entrapped” evidence being relevant merely to the weight the tribunal attach to the evidence or to mitigation alone. The arguments for exclusion of evidence from medial entrapment are weaker still.

This robust approach on the admissibility of evidence was seen in the Pakistani spot-fixing cases (see this LawInSport article by Alex Odell - ‘""Pakistani cricketers" Appeals heard at CAS - watch this space"[10]). The integrity of the sport and the public perception of it was far more important than the vulnerability of those involved. This was notwithstanding the fact that there remained a real possibility that some participants were exploited by the undercover reporters and others involved in the conspiracy.[11]

In the author’s opinion, this position is surely the correct one. Any sport will be so fundamentally undermined as a sport unless evidence obtained in this way is available for scrutiny and examination. Whilst the opportunity to play sport at such a level is undoubtedly a privilege, it does come with the price of ensuring that the integrity of the sport itself is maintained.


Key takeaway points on entrapment

Before setting out some practical guidance on what to do if you or someone you represent are caught in a sting, the key takeaway point from the above are: 

  • Evidence obtained via the entrapment of those employed by the State to investigate crimes may lead to the exclusion of the evidence or a stay of the criminal proceedings as an abuse of process.

  • The criminal courts are slow to treat evidence obtained via media entrapment in the same way.

  • Sports disciplinary panels are likely to admit into evidence such material, even if the courts will have treated it differently.


Practical guidance on what to do if you (or someone you represent) are caught up in a sting 

As soon as an individual even suspects that they are vulnerable to a “sting operation” they should take legal advice. Continuity of representation is fundamental in the author’s experience to crisis management in these circumstances. This advice should cover a number of matters and it is important that those who are sought out for advice have the resources and experience to have the overall picture in mind. Matters that may require consideration in any particular case include representation during a criminal investigation, the possibility of civil dispute including breach of contract, libel and defamation and employment issues and professional discipline and regulatory proceedings. Reputational and image right considerations are also frequently engaged. 

Often, the author has been instructed in cases where not enough thought was initially given to a crisis by a sportsman and/or his close advisors. A decision made in one jurisdiction must not be made without appropriate consideration of another. For example, the well meant admission made in a criminal interview or other assistance given to the police, made in the knowledge that it cannot be used in a criminal case, may have disastrous consequences when admissible before a regulator or in a civil dispute. 

The reference by many to a threat of libel proceedings being instituted by those caught in a sting, that never, in fact, materialise, should be avoided. The court of public opinion may be the most important forum and media outlets that use sting operations are not slow to publicise the fact that their targets have not actually initiated libel proceedings. The media will underline the fact that their allegations are not, in fact, being challenged. An example of such reaction followed the BBC Panorama investigation into corruption in football in 2006[12] which made allegations against, amongst others, Sam Allardyce and Harry Redknapp. 

Consideration should be given to self-reporting the concern to either the police or the relevant regulatory body (there may be a positive requirement to report under the rules of the governing body) if it is possible to do so before the “story has broken” or arrests are made. Indeed, cooperation with the police and authorities from the outset may assist. A practical example of how an early report of an investigation may have made a material difference to the sanction imposed on a sportsman is the John Higgins snooker case. This arose out of an undercover media sting operation that took place in Kiev, Ukraine. Higgins was placed into a meeting by his agent, Mr Mooney, in which an intention to “throw” snooker frames was made clear. Higgins should have reported this. He was criticised for “Failing to disclose promptly to the Association full details of an approach or invitation to act in breach of the Betting Rules.” This “foolish failure” by Higgins played a part in his lengthy ban and financial penalty.[13]

A careful analysis of who was involved and when with a timeline will illustrate the nature of the entrapment that has really taken place. A timeline may be important in factually complicated cases. An example was the George Graham bung allegation. Once the time frame of the disputed player transfers was compared to the timing of meetings and exchange of cash and bank transfers, the Tribunal was able to conclude that Graham’s evidence in relation to payments was “wholly unconvincing.[14] The mantra of “follow the money” so often repeated before juries in criminal trials, can illuminate who is really party to the conspiracy that a sting operation is trying to uncover and where real culpability may lie.

Those who are concerned about being caught up in a media sting should rigorously inspect their diaries, telephone records, emails and social media. They need expeditiously to piece together their movements, meetings and conversations over the relevant period. Understanding what one did and why may answer many of the allegations that a subject of a sting operation will face. A timely and detailed response will always assist in whichever direction the sting spreads.

This is even more important when the events the subject of the sting may be some months before the story breaks and the presence of the sting becomes known. In the author’s experience control of the media and the information agenda given to the public will control the fallout from these operations. Lawrence Dallaaglio’s admissions in 1999 following a honey-trap sting operation by the News of the World[15] may have led his loss of the England rugby captaincy but it allowed his international rugby career to continue and included a World Cup Winner’s Medal in 2003.

In many cases, the police or the reporters will wish to protect the identity of an informant who initiated their investigation. Any opportunity to identify the informant will assist in controlling the approach that the authorities take to prosecution or disciplinary proceedings. As more and more sports regulatory tribunals utilise the forensic skills of barristers and solicitors in their investigation and prosecution of allegations, the ethical and professional standards of those professions will ensure that disclosure of such material is made if it is relevant and may reasonably assist the defence or undermine the prosecution. In the author’s experience, such disclosure may cause discomfort to those involved in the preparation of such regulatory proceedings. In cases, in which I have been instructed and where I have felt that disclosure should be made or prosecutions halted, regulatory bodies have followed that advice. 

An understanding of the law in relation to disclosure may greatly assist those facing proceedings arising out of a media sting. Newspapers will wish to protect their original source. They will do so even if that means not reporting a story or supporting a prosecution or disciplinary proceedings. They will use undercover reporters to obscure and protect the original source’s identity. When it has been possible to set out a defence case that causes an order for the disclosure of the source to be made, cases that I have been involved in have collapsed to the benefit of the defendant.

Ultimately, a recognition that, whatever one’s personal view of the ethics behind the way in which evidence was obtained, the evidence is likely to be admissible at some stage, will allow the fallout to be contained and managed.

Whilst “entrapment may win through,” its effect may be mitigated and controlled. It may not always see the end of sporting aspirations, reputations and a career.

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Matthew McDonagh

Matthew McDonagh

Matthew McDonagh is a renowned trial advocate who appears on a regular basis in the criminal and civil jurisdiction and before regulatory tribunals. He is regarded as a fearsome advocate by his opponents but presents with a charm and charisma that is regularly remarked upon by Judges.

His particular expertise is in the forensic analysis and cross-examination of complicated expert evidence at which he excels. This excellence is recognised by Matthew’s rankings over a number of years in legal publications including Chambers and Partners and the Legal 500.

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