Court of Appeal: Appeal dismissed for man convicted based on anonymous evidence from FBI agent

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 45
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Mr Bates had claimed that the trial judge erred by allowing the FBI agent, known as Agent Peter, to give his evidence anonymously. He also claimed that the trial judge was wrong to allow documents recording exchanges between Agent Peter and the defendant into evidence. On Thursday, the Court of Appeal dismissed all the grounds of appeal and upheld the conviction.

Background

Agent Peter was an undercover FBI agent who posed as a seller of illegal weapons online. Using the dark web marketplace named “Berlusconi,” which was only accessible using specialised software, Agent Peter received messages from an account called “Snow4” seeking to buy weapons. A sale was agreed for certain items in exchange for Bitcoin.

Although Mr Bates was never accused of being behind the Snow4 account, the purchaser requested that the items be delivered to “Tim Bates” in Tipperary. Agent Peter subsequently alerted the Gardaí to the transaction and undercover Gardaí attempted to deliver the package to the address. Although there was no answer at the door, Mr Bates arranged to collect the package from the undercover officers at another location.

When he met the undercover deliveryman, the defendant gave his name and claimed he was picking up the package for his son, Tim, who was in hospital. It transpired that he did not have a son.

Mr Bates was charged with several counts of conspiracy to possess firearms, ammunition and explosives. He was subsequently convicted, although his co-accused was acquitted following a direction by the trial judge.

Prior to the trial, an application was made by the Director for Public Prosecutions to allow Agent Peter and the two Gardaí to give their evidence anonymously, using codenames. In support of this application, evidence was provided that the agents worked covertly and that revealing their identities could put them in danger. It would also pose a threat to the integrity of present and future operations. Privilege was also asserted over Agent Peter’s email address and website. The trial judge acceded to the application.

Mr Bates appealed the conviction on a number of grounds, although the focus of the judgment were the claims that the trial judge erred by allowing the witnesses to give evidence anonymously and that a document which recorded an exchange between Snow4 and Agent Peter was inadmissible due to hearsay.

Court of Appeal

The Court of Appeal dismissed the appeal on all grounds. Giving the judgment of the court, Mr Justice George Birmingham, President, held that there was no requirement in the Criminal Procedure Act 1967 that a witness must provide their name when giving evidence. Although the statute required a list of witnesses to be provided prior to trial, there was “nothing to prevent a witness proposed to be called being referred to by the office they hold and the role they will be expected to play at trial.”

The court went on to consider other cases in which anonymity of witnesses was in issue, including R v. Davis [2008] 1 A.C. 1128 and DPP v. Hawthorn [2020] IECA 107. Coincidentally, the anonymous evidence in Hawthorn also concerned the evidence of Agent Peter. Having analysed the relevant jurisprudence, the court said that, while the evidence of Agent Peter was not unimportant, it could also not be described as very significant in circumstances where Agent Peter never had any direct contact with Mr Bates. Agent Peter’s evidence was only used to provide a background as to how Gardaí came into contact with Mr Bates. Further, the evidence of the Gardaí was uncontroversial.

In those circumstances, the court held that there was no prejudice caused to the defendant by the anonymous evidence. The Circuit Court had the jurisdiction to make the order that it did. However, the three-judge panel also said “we can only express our surprise, once more, that this is an area that has not received attention from the legislature,” and that it was “less than desirable” that judges have to make decisions on a case-by-case basis.

On the issue of the admissibility of exchanges between Agent Peter and Snow4, the court rejected Mr Bate’s argument that the evidence violated the rules on entrapment. The court made the “fairly obvious” point that Agent Peter never had any direct contact with Mr Bates and that “whoever or whatever caused Mr. Bates to become involved in this offence, it was not Agent Peter.”

On the hearsay point, the court said that the exchanges merely showed that Snow4 was seeking to buy items and placed an order. It did not say that Snow4 was acting on behalf of anyone or why he was seeking the items. The records of the exchange did not assert facts of any kind and therefore did not offend the rule against hearsay. Further, a common-sense approach to the inclusion of evidence of the transaction was necessary under the decision in DPP v. K(B) [2000] 2 IR 199.

Conclusion

The court also rejected various other submissions by Mr Bates, including that the trial judge misdirected the jury in the judge’s charge and that the extension of his detention period was unlawful. The court dismissed all the grounds of appeal and upheld the conviction.