Use Of Informants In Criminal Investigations
✅ Who Are Informants?
Informants are individuals who provide information to law enforcement about criminal activities, often in exchange for payment, immunity, or reduced sentences.
Informants may be:
Participants in the criminal activity (e.g. co-conspirators),
Embedded agents (undercover police),
External observers.
🔍 Legal Issues Involving Informants:
Entrapment – Did the informant induce someone to commit a crime they wouldn’t otherwise have committed?
Disclosure – Must the prosecution disclose the identity of the informant to the defence?
Public interest immunity (PII) – Sometimes the court protects the identity of informants to preserve their safety and law enforcement tactics.
Reliability – Informants may have motives (e.g. revenge, leniency) that can affect their credibility.
⚖️ Legal Protections and Standards:
Fair trial rights under Article 6 of the ECHR (UK and Europe) or the 6th Amendment (U.S.).
Courts may exclude evidence if obtained unfairly through informants.
Police conduct and informant management is governed by laws such as:
UK: Regulation of Investigatory Powers Act 2000 (RIPA),
U.S.: Various FBI/DEA informant guidelines.
📚 Landmark Cases Involving Informants
1. R v. Looseley (2001, UK House of Lords)
Facts:
Police used an undercover informant to approach the defendant and ask for drugs. The defendant eventually sold a small amount of heroin after persistent requests.
Legal Issue:
Did the police entrap the defendant, violating his right to a fair trial?
Ruling:
The court ruled that the defendant was entrapped and the case should be stayed (discontinued). It held that police conduct was oppressive and unfair.
Significance:
Established that entrapment can lead to exclusion of evidence or the case being dismissed.
Courts must assess whether the crime originated with the accused or the state.
2. R v. Shannon (2001, UK)
Facts:
The prosecution refused to disclose the identity of an informant who was a key part of the defence’s argument.
Legal Issue:
Should the identity of an informant be disclosed if it’s essential to the defence?
Ruling:
The court held that informant identity can be withheld if there is a genuine threat to their safety—unless non-disclosure would render the trial unfair.
Significance:
Balances public interest in protecting informants with defendant's right to a fair trial.
Reaffirmed rules on Public Interest Immunity (PII).
3. United States v. Russell (1973, U.S. Supreme Court)
Facts:
A government informant helped the defendant produce methamphetamine by supplying an essential chemical.
Legal Issue:
Did the informant’s involvement constitute entrapment?
Ruling:
The Court rejected the entrapment defence, ruling that although the informant participated, the defendant was predisposed to commit the crime.
Significance:
Created a two-part test for entrapment:
Did the government induce the crime?
Was the defendant predisposed to commit it?
Predisposition negates entrapment in U.S. law.
4. Teixeira de Castro v. Portugal (1998, European Court of Human Rights)
Facts:
Two police informants actively encouraged the defendant (with no criminal record) to supply drugs.
Legal Issue:
Was the conviction based on unlawful incitement by state agents?
Ruling:
The ECHR ruled that the defendant’s right to a fair trial was violated because the offence was instigated by police agents.
Significance:
Clear condemnation of state-created crime.
Reinforced that proactive use of informants must be carefully controlled.
5. R v. Davis (2008, UK House of Lords)
Facts:
Anonymous witnesses (including informants) were used at trial. The defence couldn’t cross-examine them properly.
Legal Issue:
Does using anonymous informants as witnesses violate the right to a fair trial?
Ruling:
The House of Lords held that the defendant’s rights were violated because he could not properly challenge the evidence.
Significance:
Marked a shift toward requiring full disclosure and proper cross-examination.
Influenced the Coroners and Justice Act 2009, which allowed limited use of anonymous witnesses under judicial control.
6. United States v. White (1971, U.S. Supreme Court)
Facts:
The government used a wired informant to record conversations without the defendant’s knowledge or a warrant.
Legal Issue:
Did this violate the defendant’s Fourth Amendment rights?
Ruling:
The Court ruled it did not violate the Constitution, as one party (the informant) consented.
Significance:
Allowed informants to gather evidence without warrants as long as they consent.
Significant case for covert surveillance law.
📊 Summary Table of Cases
| Case Name | Jurisdiction | Key Issue | Outcome & Significance |
|---|---|---|---|
| R v. Looseley (2001) | UK | Entrapment by informant | Case stayed due to police misconduct |
| R v. Shannon (2001) | UK | Non-disclosure of informant identity | Allowed unless trial unfair |
| US v. Russell (1973) | USA | Informant assistance = entrapment? | Predisposition ruled out entrapment |
| Teixeira de Castro v. Portugal (1998) | ECHR | State-instigated crime | Conviction quashed; fair trial breached |
| R v. Davis (2008) | UK | Anonymous informants as witnesses | Violation of fair trial; new legal framework needed |
| US v. White (1971) | USA | Informant recordings without warrant | Permitted under Fourth Amendment |
🔑 Key Legal Principles from These Cases
Entrapment is not allowed – If the informant induces the crime, courts may dismiss the case or exclude evidence.
Disclosure of identity – Courts may protect an informant’s identity, but not at the cost of an unfair trial.
Predisposition matters – In U.S. law, a defendant who was likely to commit the offence anyway generally can’t claim entrapment.
Anonymous witnesses – Using secret informants as witnesses must be justified and controlled, allowing proper cross-examination.
Surveillance by informants – Courts generally allow it if consent is given by the informant, especially in the U.S.
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