Correspondence relating to entrapment (FOI)

Request

[Name redacted] has reported a number of paedophiles to the police after posing as a child on line, this resulting in [redacted] being ‘groomed’ by the suspect. On attending a proposed meeting with the ‘child’ the suspect is arrested for the relevant offence, prosecuted and convicted.

I would ask for copies of advice and opinions between the police prosecutors and other law officers concerning whether or not the actions of the complainant / witness amounts to ‘entrapment’ and the reasoning behind any conclusions.

Response

Any communications between the States of Jersey Police and the prosecutors / Law officers department will contain the personal information of those subject to prosecution. This is classed as special category data in the Data Protection (Jersey) Law 2018 and is considered absolutely exempt from publication under Article 25 of the Freedom of Information (Jersey) Law 2011.

The same communications are also subject to legal privilege which makes the whole communication subject to the qualified exemption under Article 32 (Legal professional privilege) of the Freedom of Information (Jersey) Law 2011.

The UK courts have considered this issue and the matter has been widely reported in the UK press. See below link:

The Guardian: Judge rules 'paedophile hunters' can continue posing as children online

Articles applied

Article 25 Personal Information

(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined by the Data Protection (Jersey) Law 2018.

(2) Information is absolutely exempt information if-

(a) It constitutes personal data of which the applicant is not the data subject as defined by the Data Protection (Jersey) Law 2018; and

(b) Its supply to a member of the public would contravene any of the data protection principles, as defined in that law.

Article 32 Legal professional privilege

Information is qualified exempt information if it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

Public interest test

Previous rulings on the use of entrapment were restricted to the use by ‘Law enforcement agencies’. The recent rulings address the current actions by individuals. The public have a right to know what considerations are given to these matters in general and this is served by the publication of rulings by the courts. The public do not have the right to know the decision making process for each and every individual case. Individuals are not tried by the public but by the criminal justice system. It is not in the public interest to have individual cases publicised and made subject to public scrutiny. The specific request above does not fall outside the published decisions of the UK courts and is not seen as a special case. The public interest in this case is the maintaining the concept of the confidential nature of professional and legal privilege which allows individuals and the legal community to freely discuss legal issues and sensitive personal data without the fear it will be reported to the world at large.