The recent hoo-hah over cops on campus at the cannabis circus raises an interesting legal topic about plain clothes policemen.
I prefer the term "non-uniformed officer".
"Plain clothes" reminds me too much of that blind date my mum pushed me into all those years ago.
"She may not be the Mona Lisa, son, but she wears plain clothes and sensible shoes."
If there was ever a thoroughly depressing introduction to the opposite sex then this was it, because the Mona Lisa didn't push my buttons either.
But, as usual, I digress.
There is a huge difference between a plain clothes policeman and an undercover copper.
All detectives on the job don't wear uniform.
They are not undercover policemen.
An undercover officer is one who assumes a false identity and has to infiltrate and become part of the fabric of the criminal classes in order to catch villains.
There is nothing wrong with that whatsoever.
Anyone who suggests that criminals require some advance warning that the police are going to be around are twerps.
Protest a particular law by all means, but when people congregate openly to flout the law then they can hardly be heard to whine if a police officer in plain clothes joins the crowd and busts the perpetrators.
The use of undercover police officers is an integral part of effective policing. It cannot be condemned out of hand.
It is a necessary and dangerous part of detecting criminal offending which usually cannot be controlled through orthodox police activity.
But a year or so ago a report from Seattle told us of a police officer on Christmas Eve posing as a tramp sitting in the gutter with his begging cup but then ticketing motorists who stopped to give him money for not wearing seat belts.
How miserable can you get? Another officer dressed up as Father Christmas holding a charity donation bucket and did the same thing.
Bad Santa.
To be fair, it appears the first police officer was holding a sign saying "Buckle Up", but the citizens who wanted to assist him were genuinely good Samaritans.
Their reward was an instant fine of $150.
Well, they were not wearing seat belts, were they? Could those motorists succeed on a not guilty plea, citing oppressive or unconscionable behaviour by that officer?There are limits to undercover activity and these have been carefully developed by our courts in the past 30 years.
The judges have discretion to refuse to admit evidence if they think it was obtained through oppressive or unconscionable behaviour.
There are lines in a civilised society over which a police officer cannot step if acting undercover.
It has been held many times that it is unconscionable to entice another to commit an offence which he or she would not otherwise have committed, and then inform against that person in respect of such offence.
There is a distinction between involvement as an agent provocateur who merely gives opportunity to those already disposed to commit offences, and other situations where the agent actually initiates, encourages, or stimulates an offence which would not otherwise have been committed.
All of this is known as the "predisposition approach".
If the villain would have acted criminally regardless of the undercover officer's presence, even with some minor encouragement by that officer, then undercover surveillance is permissible.
Most of the cases are drug cases, but in one prostitution case there was evidence that a pimp was active in his trade and the police set up a sting operation in a bar, providing a policewoman to act the part of the hooker with a policeman acting the part of the client, effectively setting up a "willing buyer, willing seller" operation.
They secured a conviction against the pimp by enticing him to make the introduction.
The court held that their sting operation did not cross the line into unconscionable behaviour because of the pre-disposition of the pimp to profit from prostitution.
Had the sting operation targeted a random member of the public with a request "I'll pay you 10% if you get that man over there to have sex with me for $100", then that would almost certainly be ruled inadmissible.
But in another case, over a significant period of time, a police officer became very friendly with a young man and they developed almost a brother-like relationship, and both smoked cannabis and moved in cannabis circles.
When the young man sold the undercover constable some cannabis he was dragged before the court, but that evidence was rejected because the court held that the line had been crossed and that the active encouragement and participation by the police officer was not acceptable.
So an undercover officer "getting down and dirty" and infiltrating a gang or drug cartel is perfectly acceptable.
But initiating, encouraging, or stimulating an offence which would not otherwise have been committed is not.
So we get back to Bad Santa in Seattle.
Well, the motorists had been predisposed to drive without their seat belts buckled up.
And there was no active encouragement by the police officer.
But I would think the word unconscionable might just apply to this case because the offending was at the lower end of the scale and the policemen used a sneaky device to encourage goodly citizens to drop money into his beggar's cup and then said "you're nicked".
I think that is unconscionable.
It's just not right.
If I am wrong then it is open for Easter Bunny uniforms to be donned by the constabulary at the Chocolate Fair enticing kiddies to sneak mini bars before cuffing them and hauling them off to the Youth Court.
And what would the ditzy, but adorable, Alice Tinker from The Vicar of Dibley think of that? - Michael Guest
Michael Guest is a former lawyer and District and Family Court Judge
