Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and European Approaches

Abstract

The entrapment defense is no longer peculiarly American and has been recognized in Britain, Canada and by the European Court of Human Rights. This article provides a comparative analysis of North American and European approaches with a focus on the application of entrapment defenses to proactive terrorism investigations. The first part briefly reviews the leading entrapment decisions in the American federal system, in Canada, in England and in the European Court of Human Rights. The second part of this paper evaluates the ability of different approaches to entrapment to detect and disapprove of discriminatory targeting of the accused in terrorism investigations. It suggests that all the entrapment defenses to various degrees allow the accused to argue that they are the victims of a discriminatory targeting decision that it is motivated by the political and religious beliefs of the accused rather than whether they will commit a crime involving terrorism. The third part of this paper explores the future evolution of entrapment defenses in light of the possible impact of terrorism cases. Although the terrorist context will likely give the state more leeway in how proactive stings are conducted, the state’s initial decision to target the accused should be carefully examined by the courts in all the jurisdictions examined in this article. Courts should be cautious about allowing the accused to be targeted for intrusive strings simply on the basis of their association with places of political or religious extremism. In the long run, requiring the state to have reasonable suspicion or to establish a predisposition to commit a terrorist crime will bolster the legitimacy of applying the criminal sanction to terrorists.

Keywords: entrapment, terrorism prosecution, discriminatory targeting, comparative analysis, proactive stings