9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) entrapment ("as a result of police incitement"), may deprive a defendant of the right to a fair trial embodied in Article 6: see the decision of the European Court of Human Rights in Teixeira de Castro v Portugal [1998] 28 EHRR 101. 16 . Thus, although entrapment is not a substantive defence, English law has now developed remedies in respect of entrapment: the court may stay the relevant criminal proceedings, and the court may exclude evidence pursuant to section 78. In these respects R v Sang [1980] AC 402 has been overtaken. Of these two remedies the grant of a stay, rather than the exclusion of evidence at the trial, should normally be regarded as the appropriate response in a case of entrapment. Exclusion of all the prosecution evidence would, of course, dispose of any anomaly in this regards. But a direction to this effect would really be a stay of the proceedings under another name. Quite apart from these considerations, as a matter of principle stay of the proceedings, or of the relevant charges, is the more appropriate form of remedy. A prosecution founded on entrapment would be an abuse of the court's process. The court will not permit the prosecutorial arm of the state to behave in this way." 97. At paragraph 18, Lord Nicholls stated that "courts should distinguish clearly between an application to exclude evidence on the ground that the defendant should not be tried at all and an application to exclude evidence on the ground of procedural fairness. The distinction was also made by Lord Hoffmann at paragraphs 42 to 44. At paragraph 40, Lord Hoffmann described the stay procedure as "a jurisdiction to prevent abuse of executive power". 98. Looseley provides an example, it is submitted, correctly in my view, where Article 6 has required the existence of an exclusionary rule in a criminal trial. It is an example of the impact of Article 6 upon the common law, to the development of which Lord Nicholls refers. While abuse of process has a more general scope, the statements cited in this part of the judgment have expressly been made with a view to dealing with problems arising in criminal trials. 99. In Montgomery v HM Advocate & Anr [2003] 1AC 641; the Privy Council considered the issue to be addressed under Article 6. Lord Hoffmann stated, at page 649D: "Of course events before the trial may create the conditions for an unfair determination of the charge. For example, an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of Article 6(1) lies not in the use of torture (which is, separately, a breach of Article 3) but in the reception of the evidence by the court for the purposes of determining the charge. If the evidence had been rejected, there would still have been a breach of Article 3 but no breach of Article 6(1)." 100. Particular reliance is placed by Mr Emmerson on the decision of the Divisional Court (Sedley LJ and Poole J) in R (Ramda) v Secretary of State for the Home Department [2002] EWHC 1278 Admin The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. At paragraph 9, Sedley LJ stated: "Among the issues for the Home Secretary to determine may be whether the trial to be faced by the wanted person will be a fair trial. This may involve the voluntariness of extra-judicial confessions relied on as against him." The court cited the passage from Lord Hoffmann's judgment in Montgomery already mentioned. 101. It was thought that the prosecutor in France would rely on an extra-judicial confession by Bensaid and that it would be admissible in French law against the accused person. Having considered counsel's [Mr Emmerson's] invitation to the court to infer that Bensaid had been beaten up at a time closely prior to admissions he made, the court concluded at paragraph 22: "Questions of admissibility within the requesting state's criminal process are ordinarily for the courts of the requesting state to decide, especially where admissibility turns upon disputed issues of fact. It is only where it can be demonstrated that the approach taken by the requesting state's courts to admissibility will itself be such as to create a real risk of a http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 22/113