Part 1 43 Case Study – Agents provocateurs* Unconnected to any police anti-drug operation, X, a drug user, is approached by two undercover police officers. The police officers persuade X to identify a supplier and offer to buy several kilograms of heroin from him or her. X mentions the name of Y as someone who might be able to find the drugs. He obtains Y’s address from a third person and goes to Y’s home in the purported buyers’ car. Y has no previous conviction. The officers tell Y that they wish to buy some heroin and produce a roll of banknotes to prove that they can pay. Y agrees to supply the drugs and goes to the home of another man, where he obtains the required amount. He returns to the police officers and exchanges the heroin for money, less than two hours later. The two police officers then identify themselves to Y and arrest him. Y is later convicted of supplying the drugs. Question: Do the police officers act as agent provocateurs by inciting Y to commit a crime? A distinction should be drawn between cases where the undercover officers create criminal intent where it had previously been absent and cases where the actions of the officers expose a latent pre-existing intent, by providing an individual with an opportunity to act in an illegal way. Without revealing their identity, the two police officers incited Y to sell them the drugs. Y had no previous convictions and was unknown to the police, who only came into contact with him through the intermediary of X. The police did not appear to have good reasons to suspect that Y was a drug trafficker. In fact, the drugs were not at his home, and he obtained the drugs from a third party. Therefore, it cannot be assumed that he had pre-existing intent to commit a crime, and there is nothing to suggest that he would have done so without the intervention of the police officers. In addition, the two police officers acted on their own initiative, outside a specific anti-drug trafficking operation, and there had been no prior authorization of their actions. As the police officers created the criminal intent, they acted as agents provocateurs. * This case study is taken from the facts in Teixeira de Castro v. Portugal, and the analysis of the question on the findings of the ECtHR in that case.51 51 ECtHR, Teixeira de Castro v. Portugal, Application No. 25829/94, 9 June 1998, <http://hudoc. echr.coe.int/sites/eng/pages/search.aspx?i=001–58193>.