Court rules controlled drugs delivery not automatic entrapment

A Constitutional court has ruled that a controlled delivery of drugs cannot automatically be taken to constitute entrapment at law.

This was established in a judgment delivered by Madam Justice Jacqueline Padovani Grima, presiding over the First Hall of the Civil Court in its constitutional jurisdiction in a case filed against two men accused of cannabis trafficking

Luke Muscat, 26, and Henry Grogan, 31, commenced constitutional proceedings in 2012, after they had been found guilty of conspiring to traffic cannabis, following the conclusion of a €15,000 drug deal with a police informer.

Police Superintendent Norbert Ciappara had coordinated the sting operation after learning that Grogan had made an offer to supply marijuana to Anthony Calleja, who had offered to act as a police informer.

The controlled delivery took place on 10 February 2010, when Grogan had gone to collect a consignment of 19 blocks of cannabis from Calleja.

In their case, two drug dealers claimed that police officers from the Drugs Squad had organised the drug delivery, thereby inciting the crime and constituting entrapment in breach of their human rights.

However, Padovani Grima held that the people who had provoked the crime were not the agents but the prosecution’s main witness, Anthony Calleja, and that the police’s involvement began after the drug deal had already been planned. The police intervention was not the deciding factor in whether or not the crime took place.

The plaintiffs had argued that the police had not only conducted the controlled delivery of the drugs, but had initiated the deal from the beginning. The police had entrapped the men by acting as agent provocateurs, they said, claiming that this had breached their right to a fair trial, enshrined under the Maltese Constitution and the European Convention on Human Rights.

The Attorney General had replied to the allegations in December 2012, arguing that the right to a fair trial cited by the plaintiffs only applied once judicial proceedings had begun. In addition, “the simple fact that a controlled delivery had taken place does not necessarily mean that a breach of fair trial has taken place,” but that stratagems such as controlled deliveries and the use of agent provocateurs could only be said to have infringed this right if the suspect would not have committed the crime had it not been for the intervention of the agent.”  

The police had obtained permission to carry out the controlled delivery from the duty magistrate at the time, had noted the court, and the two complainants had been arrested after successfully negotiating the deal with the seller and going to deliver the drugs.

Grogan had approached Calleja to sell the drugs to him before the sting was planned.

“This criminal activity was not conceived by coincidence, but had been expected by Grogan. More so in the case of Luke Muscat, whose involvement in this affair had been absolutely voluntary and without instigation by anyone. In his case, one certainly cannot talk of entrapment.”

Judge Jacqueline Padovani Grima dismissed the plaintiff’s case and declared that no entrapment had taken place, in view of the fact that the deal had been planned three months in advance and had predated intervention by the police, as well as because “not a shred of evidence had been provided to support that the plaintiffs were handed an exceptional opportunity to commit a crime.”