Sting Operations and Entrapment in Sport
By Vidya Narayanswamy
Match-fixing and spot-fixing are seen as some of modern cricket’s greatest challenges, as they undermine public confidence in the authenticity and integrity of the game. Although suspected to have existed since the 1990s, law-enforcement authorities and cricket boards woke up to the challenge only in 2000, after then South African captain Hansie Cronje was implicated in a match-fixing scandal. Shortly after this information created headlines in cricket playing nations across the world, another scandal surfaced – Tehelka, an Indian magazine, had hired cricketer Manoj Prabhakar to meet players and officials with a hidden camera and get them to divulge details about match-fixing in Indian cricket. As a result of the investigations conducted after the sting, the CBI named Mohammed Azharuddin, Ajay Jadeja, Ajay Sharma and Manoj Prabhakar as the cricketers involved with bookmakers and in match-fixing in Indian cricket. Sharma and Azharuddin were handed lifetime bans from professional cricket by the BCCI, and Jadeja and Prabhakar were banned for five years each.
The second case brought the topic of “entrapment” into prominence in the area of sport. Questions were raised on the legality of using deceptive means to obtain information, and then prosecuting cricketers on the basis of such information. Further, the admissibility of evidence obtained through fraudulent means was also questioned.
Legal implications of entrapment – English law
Traditionally, in the U.K., entrapment refers to a situation where law enforcement agencies lay a trap to induce an innocent man to commit a crime, so that they can prosecute him. Entrapment amounts to an abuse of the court’s process. The rationale offered is that law enforcement agents are tasked with protecting the citizens of a state. And entrapment is a misuse of the coercive, law enforcement functions of the state to oppress its citizens. However, despite this position, the fact of entrapment does not afford a person any protection from prosecution or even a guilty pronouncement. In legal terms, entrapment does not exist as a substantive defence in English law; it only offers some respite at the time of sentencing.
Today, entrapment includes entrapment by undercover journalists, or private entrapment as it is commonly known. Persons entrapped (either privately or by public authorities) into committing an offence may avail of the legal remedies now developed in respect of entrapment. In addition to a shortened sentence, the court may now stay the relevant criminal proceedings, and exclude evidence pursuant to Section 78 of the Police and Criminal Evidence Act, 1984. Under Section 78, courts are empowered to exclude evidence on which the prosecution proposes to rely if the court has any concerns regarding the circumstances in which the evidence was obtained.
Although the criteria to determine whether the legal remedies available for entrapment should apply to a case of private entrapment are unclear, certain guiding principles can be inferred from case law dealing with entrapment by law enforcement agencies: –
- The reason for the particular sting operation: The journalist must have acted in good faith and not, for example, as part of a malicious vendetta against an individual or group of individuals. Having reasonable grounds for suspicion (usually on the basis of past conduct of the person) is one way good faith may be established;
- The nature and extent of the journalist’s participation in the crime: The greater the inducement held out by the journalist, and the more forceful or persistent his overtures, the more readily a court may conclude that the journalist overstepped the boundary.
Sting Operations in the UK
– The Terry Sting
It is a very, very clear case of entrapment solely to create a newspaper story…The facts in this case are highly unusual. In fact the offence was actually created by the actions of the newspaper sending a journalist to set you up. It is clearly an entrapment case and the only reason they did this was to create a story because of your connections to a well-known footballer.”
This was the judgment pronounced by Basildon Crown Court judge Christopher Mitchell while sentencing Edward Terry, father of Chelsea footballer John Terry who faced a maximum 14 year prison sentence, to a shortened sentence of 6 months, for selling cocaine to an undercover News of the World reporter. Dan Sanderson, the reporter, had befriended Terry at a bar over a six-week period whilst posing as a chauffeur. Then on 5 November 2009 he asked Terry where he could buy cocaine for his boss and his friend. Terry said he could supply it and agreed to a fee of £120 plus £40 as facilitation fee.
– ‘The Spot-Fixing Sting’
“I bear in mind that this was a sting by the NOTW, but that does not render your culpability any the less, once it is recognised that you were involved in discussing such activities outside the scope of the sting, as it is clear that you Majeed, Butt and Amir were. Though no cheating bets were placed by reason of the information given to the journalist, the intention was that they should be and if information was supplied to others, as it was, that could only have been for one purpose.”
In August 2010, News of the World broke a story about a sting operation they had conducted. It involved three Pakistani cricketers – captain Salman Butt, Mohammad Asif and Mohammad Amir. Undercover reporters from the News of the Worldhad offered money to a Pakistani-English businessman Mazhar Majeed to procure the bowling of two no balls at specific points in an over in a Lords test match and secretly videotaped the entire episode. Both Asif and Amir went on to bowl enormous no-balls (one a good half meter over the line) on the predicted deliveries. On the basis of this expose and further evidence collected by the investigation authorities, an ICC trib
Criminal proceedings were also initiated against the three cricketers and Majeed. The Southwark Crown Court found Majeed, Butt, Asif and Amir guilty of conspiracy to cheat at gambling and conspiracy to accept corrupt payments. While the court considered the issue of entrapment, it did not accept that it offered the cricketers or Majeed a defence. One of the principles developed through case law pertaining to entrapment is that the journalist/law enforcement authority should not have presented an unexceptional opportunity to the defendant to commit a crime. If he has, the defendant will be able to invoke the various legal remedies available.
Both the Edward Terry and spot-fixing stings were born out of journalists providing exceptional opportunities and inducing the defendants to commit a crime. Why then did Edward Terry get off with a suspended six month sentence, while the cricketers found themselves sentenced to between thirty months and six months imprisonment? Perhaps the answer can be found in the presence of evidence proving Butt’s prior involvement in related activities. In the spot-fixing trial, the prosecution presented evidence of the text exchange between Butt and Majeed in the West Indies in May 2010, as well as a phone conversation between them in respect of batting out a maiden over at the Oval. Such continued involvement may have convinced the court that it was in public interest to prosecute Butt (and the others) despite the circumstances in which the offence was committed.
Entrapment in India
The Indian position on entrapment and sting operations was explained by the Delhi High Court in the case pertaining to a “Live India” sting operation (Court on its own motion, WP (Crl.) No.1175/2007). Television news channel “Live India” carried out a sting operation which showed Ms. Uma Khurana, a teacher with a Delhi government school, purportedly forcing a girl student into prostitution. Subsequent to the telecast, a crowd gathered around the school and demanded for Ms. Khurana to be handed over to them. In the chaos that followed, some persons physically attacked the teacher and even tore her clothes. When the incident was published in popular newspaper Hindustan Times, the court drew up proceedings on its own motion. The court ordered an investigation into the matter and it was found that Ms. Khurana was not involved in any organised prostitution racket involving school girls as shown in the sting operation and that a part of the sting operation was stage managed.
The court observed that while there is no doubt or second opinion that the “truth” should be shown to the public in public interest whether in the nature of a sting operation or otherwise, but entrapment of any person should not be resorted to and should not be permitted. In this connection, the Court referred to the decision of the Supreme Court of the United States in Keith Jacobson v. United States (503 US 540). In the said decision, it was held by the Supreme Court of the United States that “in their zeal to enforce law, law protectors must not originate a criminal design, implant in an innocent person’s mind a disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute.”
The Delhi High Court held that the principles of the U.S. Supreme Court decision can be extended to the media. The Court held that inducing a person to commit an offence, which he is otherwise not likely and inclined to commit, so as to make the same part of the sting operation is deplorable and must be condemned by all including the media. Sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person.
Thus the Court created a distinction between sting and hidden camera operations which capture an event which would have taken place whether or not the hidden camera was there, and operations where the media fabricate a situation to induce persons to commit certain acts, holding that while the first may be justifiable in public interest, the second amounts to an entrapment, and should not be permissible.
With regard to admissibility of evidence obtained through a sting operation, the position remains unclear as Indian courts have adopted divergent views. Previously, the courts did not concern themselves with the method by which the evidence in question was obtained. Their position was that evidence remained evidence even if the methods prescribed in CrPC were not complied with (Pushpadevi M. Jatia v. M.L. Wadhawan AIR 1987 SC 1748). Of late, however, Indian courts have looked at evidence obtained through sting operations with more caution. The general standard employed is to disregard evidence if it has been obtained by luring the defendant into committing a crime or incriminating himself. However, there have also been instances where courts have admitted evidence against a person lured into committing an offence upon observing that there would be an increase in corruption if people who help unravel acts of corruption in an institution are prosecuted (Sri. Bhardwaj Media Pvt. Ltd. v. State, (W.P. (Crl.) Nos. 1125 and 1126/2007). In such cases courts have ignored the factum of entrapment keeping in mind the larger public interest.
While there has been a fair degree of uncertainty, Indian courts, of late, seem to have taken the position that entrapment, in the event it helps combat corruption, is not impermissible. Fixing too, is a form of corruption having an insidious effect on professional sport and its followers. It could potentially lead to the erosion of the image and integrity of any sport, and bring an end to honest sporting competitions. It is therefore possible to justify entrapment in sport as being necessary in public interest. However, it is problematic when one attempts to reconcile this with the fact that absent of the inducement, the athlete would have remained innocent.
Recently, the ICC has also expressed that it is in favour of launching ICC sponsored sting operations to detect corrupt players ready to deal with bookies. It has proposed the use of ‘mystery shoppers’, i.e., persons posing as bookmakers to see if the players report such approaches in accordance with the ICC Code of Conduct. The ICC believes this could work in two ways – first, it will establish whether the reporting procedure established by it is working, and second, knowledge of such operations may instill a genuine fear of getting caught among players. This move has been opposed by the national cricket federations which consider it a form of entrapment.
While the ability of an entrapment to give rise to legal (and in particular, criminal) proceedings needs to be reconsidered, a more immediate concern is ensuring that certain procedural safeguards are implemented to ensure that false and fabricated sting operations are not publicized. In this regard, the Delhi High Court, in the Uma Khurana case, provided certain guidelines for channels/newspapers proposing to publish sting operations. A channel proposing to telecast a sting operation should be required to obtain a certificate from the person who recorded or produced it saying that it was genuine to the best of his or her knowledge. The channel should also obtain permission from a committee appointed by the Ministry of Information and Broadcasting to telecast the sting operation by producing unedited tapes. Reports should not be such as to create alarm or panic or amount to incitement to commit any crime and the media should avoid overplaying certain parts and underplaying others.
© The Sports Law & Policy Centre