Criminal Law Forum

, Volume 27, Issue 1, pp 35–73 | Cite as

The Law of Police Entrapment: Critical Evaluation and Policy Analysis

Open Access


This article provides a critical analysis of the law of police entrapment and proposes a new foundation for this law. The article shows that the ‘shift of scene’ assumption underlies existing and proposed legal tests for the legitimacy of entrapment. According to this assumption, in some identifiable cases the defendant would have committed a similar offence at a different time and location absent police entrapment. In these cases, entrapment is morally and economically insignificant and hence legitimate. Using probabilistic analysis, the article advances the argument that the ‘shift of scene’ assumption is misguided. Entrapment actually changes (usually raises) the probability of commission, and hence also the defendant’s punishment expectancy, in almost all cases. This increase is hard to justify on grounds of justice or on economic grounds. The article then proposes a different basis for the analysis of entrapment, building on the idea of reallocation of burdens: where the defendant creates particularly heavy burdens that go beyond the offence’s harm expectancy, it is justified to increase his punishment expectancy through entrapment. Furthermore, entrapment should be conceptualized as a mitigating factor, thus allowing the courts to ‘correct’ exaggerated or undue increases in the defendant’s punishment expectancy.


Police Intervention Police Action Reference Class Reasonable Doubt Drug Dealer 
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Copyright information

© The Author(s) 2016

Open AccessThis article is distributed under the terms of the Creative Commons Attribution 4.0 International License (, which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made.

Authors and Affiliations

  1. 1.Brunel Law SchoolBrunel University LondonDordrechtUK

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