Evidence resulting from undercover test purchasing of drugs ruled admissible on appeal

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Mr Mills had argued that evidence gathered during an undercover gardaí operation had been incorrectly deemed admissible at the trial level.

During a voir dire within the original trial, the High Court Judge had heard evidence from four members of An Garda Síochána, who had provided details of the undercover operation.

Evidence was given that Mr Mills had supplied drugs to an undercover member of An Garda Síochána on a number of occasions, after the member had been put in contact with him following general inquiries made by the member in the area.

Evidence was also given that while Ireland did not have specific written guidelines covering the use of underground test purchasing of drugs, the operation in this case had been sanctioned “at Commissioner level” and that the members had been clearly instructed to avoid offering any enticement to a suspect to commit an offence.

At trial, the Judge had found that “the gardaí provided an unexceptional opportunity for the accused to commit the crime and on that basis the evidence is admissible.”

However, this decision was appealed on a number of grounds. It was argued that the evidence should have been inadmissible, that the gardaí breached their duties under the European Convention on Human Rights Act 2003, and that the appellant’s right to a fair trial under article 6 of the European Convention on Human Rights had been breached.

Delivering the judgment, Mr Justice Mahon noted that while the practice of test purchasing drugs had been in existence in Ireland for many years, there was little Irish case law on the issue, with the exceptions of DPP v. Mbeme, an ex tempore judgment of the Court of Criminal Appeal on 22nd February 2008, and DPP v. Van Onzen and Loopmans (judgment of the court delivered by O’Flaherty J. on 5th December 1995).

However, he noted that extensive jurisprudence existed in Europe, the UK and Australia in relation to the issue.

The European Court of Human Rights was observed to have developed a number of general principles in relation to undercover police operations, in such cases as Vaselov v. Russia (App. Nos. 23200/10, 234009/07 and 556/10, 2nd October 2010), Furcht v. Germany (App No. 54648/09, 23rd October 2014), Bannikova v. Russian (App No. 18757/06, 4th November 2010), Scholer v. Germany (App No. 14212/10, 18th March 2015), and Teixeira de Castro v. Portugal EHRR101.

In particular, factors such as whether the police were passive, or were inciting criminal activity, whether there was a reasonable suspicion against the persons involved, and whether appropriate safeguards, procedures and measures of court review were in place, were identified as important in determining whether entrapment had occurred.

The Judge also noted a number of UK decisions, including Nottingham City Council v. Amin 1WLR1071, R.B. Loosely 1WLR2060, R. V. Bellingham NICC2 and R. v. Shahzad 1AER353.

He noted that the case of Loosely contained a distinct summary of the law in England: “that if an accused person’s involvement in an offence is due to that person being incited by a law enforcement officer to commit the offence, or by that person being trapped into committing the offence by a law enforcement officer, then the evidence of that law enforcement officer should be excluded by the trial.

On the other hand, if the law enforcement officer has done no more than give an accused the opportunity to break the law, of which the accused has freely taken advantage in circumstances where it appears that the accused would have behaved in the same way if the opportunity had been offered by anyone else, then there is no reason why the officer’s evidence should be excluded and the accused’s trial should proceed with that evidence being admitted.”

Citing the Australian case of , the Judge quoted four questions which can also be used to determine whether evidence should be admissible:

“(1) Whether conduct of the law enforcement authorities induced the offence.

(2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged.

(3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose.

(4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.”

Having summarised the jurisprudence, the Judge noted that the European Court had often discussed the importance of authorisation and supervision, and criticised Ireland for its lack of formal guidelines with regards to undercover test purchasing operations.

He continued: “That is not to say however that such undercover operations are inappropriate, or that they are not undertaken in a manner which would, in general terms, satisfy the principles enunciated in the various European and other decisions, and more particularly in a manner which contravenes the relevant provisions of the European Convention on Human Rights or Article 38 of the Constitution.

“However it would be preferable if in this jurisdiction the authorisation and performance of such undercover operations were approached with a greater degree of formality and record keeping than currently appears to be the case, and that a Code of Practice be established…”

In relation to the present case, it was found that “the appellant was provided with no more than an unexceptional opportunity to commit a crime, an opportunity which he freely took advantage of in circumstances and where it appears that he would have behaved in the same way if the same opportunity had been offered by anyone else”.

Despite the lack of formal guidelines, the undercover operation had not breached the appellant’s rights, and the trial Judge was found to have been correct in their admission of the evidence. The appeal was therefore dismissed.