Director of Public Prosecutions -v- Idah [2014] IECCA 3 (23 January 2014)

Judgment Title: Director of Public Prosecutions -v- Idah

Neutral Citation: [2014] IECCA 3

Court of Criminal Appeal Record Number: 164/12

Date of Delivery: 23/01/2014

Court: Court of Criminal Appeal

Composition of Court: MacMenamin J., Herbert J., de Valera J.

Judgment by: MacMenamin J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
MacMenamin J.	Link	Quash conviction and direct re-trial

Outcome: Quash conviction and direct re-trial

COURT OF CRIMINAL APPEAL

CCA No. 164/2012

MacMenamin J.
Herbert J.
de Valera J.

BETWEEN

SUNNY IDAH

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of the Court of Criminal Appeal delivered the 23rd day of January, 2014, by MacMenamin J.

1. On the 3rd April, 2012, the appellant was convicted by a jury after a 16 day trial of two counts on an indictment, to wit, soliciting another to commit the offence of unlawful importation of a controlled drug, and soliciting another to commit the offence of the unlawful importation of a controlled drug having a value in excess of €13,000. He was sentenced to 12 years imprisonment (the final year suspended) in respect of the first count; and 15 years imprisonment (the final two years suspended), in respect of the second count on the 18th May, 2012.

2. The prosecution case was that the appellant solicited two undercover Gardaí (UC1 and UC2) to import controlled drugs into the State by seeking to induce both Gardaí to fly to Brazil for the purpose of ingesting pellets to a total weight of 1 kilogram of cocaine each, so as to transport the drugs back into this State undetected. The evidence was the solicitation occurred between the 14th and 19th September, 2010, within the State, during which time it is said the appellant had 24 separate contacts with UC1 and/or UC2.

3. The two Gardaí were detailed to pose as Polish drug couriers. They were provided with a Polish mobile phone and a contact number (the “8883” number) for a contact referred to as “Teemore”. The 24 contacts said to have occurred with the appellant included three face to face meetings on the 15th, 17th and 19th September, 2010. During the course of the contacts, it is said the appellant gave UC1 and UC2 money to pay for their hotel, to feed themselves, and supplied two airline tickets to Brazil, together with $1,000 in cash. It is said discussions took place as to the amount of drugs to be ingested, the form and weights in which the drugs would be packaged, the hotel where they were to stay, what both carriers would do on the journey, and how they would liaise on their return to this jurisdiction.

4. The central focus of this judgment relates to the fact that these contacts were recorded, and audio recordings and transcripts of these were put in evidence at the trial. Both UC1 and UC2 verified the contents of the recordings and transcripts in their evidence. Neither UC1 nor UC2 gave viva voce evidence of the entirety of the conversations between themselves and the accused at the trial, but, rather, simply verified the transcripts of the conversations which were given to the jury despite objections by counsel for the appellant.

Agreed stance of the parties
5. A wide number of issues were to be canvassed in the appeal but it was agreed between the parties that, were the court to conclude that evidence elicited from the recordings themselves was inadmissible, then, the appropriate course would be to direct a re-trial of the appellant. This argument occupied the full day that was assigned to the entire appeal. It must be clearly understood that this judgment, on this one issue, does not determine any issue regarding the admissibility otherwise of viva voce evidence from members of An Garda Síochána involved in interactions with the appellant. Such viva voce evidence was not adduced at the trial; rather, the Gardaí involved in the operation simply made reference to transcripts of the recordings, which were admitted in evidence and read to the jury.

What is in issue in this judgment
6. It was agreed that matters which are considered in this judgment will be dispositive only of the issue for the purposes of determining whether the conviction should be quashed on this one ground, leaving over any issue as to whether viva voce evidence of the conversations can be admitted to be dealt with at the re-trial. This is a discrete issue. The Court has not heard submissions on the balance of the case. Among the issues which the court need not address in this judgment, therefore, are questions relating to the admission of what was termed “the Geneva transcript”, that is to say the transcript of evidence obtained in Geneva from an undercover Swiss policeman pursuant to a hearing conducted under Part V of the Criminal Justice (Mutual Assistance) Act 2008; and whether the learned trial judge erred in law in refusing to discharge the jury when, it is said, inadmissible evidence of a prejudicial nature, appended to the written transcript of the Geneva hearing, was inadvertently furnished to the jury. The appellant has, at the hearing, abandoned three grounds of appeal relating to the admission into evidence of a chart purporting to summarise certain evidence which, it was said, tended to incriminate the appellant; points regarding the degree of interaction between counsel for the appellant and the trial judge; and the admission of certain email evidence. One other issue which relates to the evidence regarding valuation of the drugs has not been abandoned, and will also have to be argued in a further hearing.

The “authorisation” and “approval” of devices used for surveillance
7. As will be explained later, a central issue in this appeal is whether the members of An Garda Síochána were engaged in surveillance at the time it is said they had conversations with the appellant relating to the importation. The evidence was that UC1 and UC2 spoke to the appellant on a number of occasions over a five day period. These conversations were recorded. The narrow question is whether the judge erred in allowing evidence of the conversations to be admitted in circumstances where it is said there was non-compliance with the provisions of the Criminal Justice (Surveillance) Act 2009 (“the 2009 Act”).

8. There is a distinction in law between an “authorisation” for the use of surveillance equipment and an “approval”. A District Judge authorises the use of the equipment. In cases of urgency, a superior officer of An Garda Síochána may approve that use. The appeal relates to matters of evidence and law. As to the former, an authorisation pursuant to the 2009 Act was obtained from a judge of the District Court permitting the installation/use of a “surveillance device” within a room in the Regency Hotel for the period of the 14th to the 18th September, 2010. The authorisation did not permit of the use of the recording device in any other location. The conversations and meetings did not in fact take place in the room at the Regency Hotel although that authorisation was specific to that location. Some were outside the hotel in the immediate vicinity; some were elsewhere. Some were on the telephone. The judicial authorisation obtained from the District Court pursuant to the 2009 Act covered the period from the 14th September, 2010, to the 18th September, 2010. Thus, it expired at midnight on the 18th September, 2010. The following day, the 19th September, 2010, was a Sunday. The judgment also touches on an approval granted by a senior member of the Gardaí on the morning of the 19th, said to be in circumstances of urgency, when, the evidence disclosed, no attempt was made on the 17th, 18th or 19th September, 2010, to obtain further judicial authorisation. A very relevant consideration is whether, prior to the enactment of the 2009 Act, evidence of what had occurred might have been admissible.

The evidence
9. In the absence of the jury, a ruling was sought from the learned trial judge on the admissibility of recordings of face to face meetings which took place between the appellant and the undercover gardaí on the 15th, 17th and 19th September, 2010, respectively. For the purposes of this ruling, evidence on behalf of the prosecution was given by Detective Sergeant Brian Roberts (Garda National Drug Unit), Detective Superintendent John O’Driscoll (Garda National Drug Unit), Detective Superintendent William Johnson (Garda National Surveillance Unit), and UC1.

The testimony of Detective Sergeant Roberts
10. Detective Sergeant Roberts’ evidence was to the effect that, on the 13th September, 2010, he briefed the two undercover gardaí as to the role they were to play in the operation. On the following day, the 14th September, 2010, the Detective Sergeant issued UC1 and UC2 with a mobile phone and a SIM card to be used by them in the course of undercover operations. UC1 was also issued with a device capable of covertly recording and transmitting audio.

11. Among other contacts, a face to face meeting between UC1 and the appellant took place on the 15th September, 2010. The conversation was recorded by UC1 on the device which had been issued to him by Detective Sergeant Roberts. For this, UC1 had both a microphone and a recording/transmitting device fixed and concealed on his person.

12. In respect of the two further face to face meetings which took place between the appellant and UC1 on the 17th and the 19th September respectively, the audio was transmitted by the device carried by UC1 (i.e. a microphone), and recorded “live” by Detective Sergeant Roberts who was in a vehicle close by.

13. Under cross-examination, Detective Sergeant Roberts indicated that the objective of An Garda Síochána was to record, both in audio and video form, the suspect “Teemore” within the room at the Regency Hotel where UC1 and UC2 were staying. The Detective Sergeant accepted that the legislation under which the Gardaí were acting, the 2009 Act, was “very new” at the time, and something that none of the investigators had dealt with before. He accepted that the device issued to UC1 was not equipment routinely issued to a member of An Garda Síochána, and that the device was “highly developed, specialised equipment, covert for the use of members of An Garda Síochána without the knowledge of anybody in their vicinity”. The Detective Sergeant testified that the purpose of the operation had been to obtain evidence for subsequent use in court, and that every meeting, and every conversation, was recorded by the same equipment including all telephone conversations. The recordings obtained therefrom were subsequently given to UC1 who made verbatim transcripts of the dialogue contained therein.

14. Detective Sergeant Roberts was, by the 17th September, 2010, aware of a conversation recorded on that date between the appellant and the undercover police officer during the course of which arrangements were put in place for the two “drug mules” to travel to South America on the 19th September, 2010, as opposed to the previously arranged date of the 18th September, 2010.

The testimony of Detective Superintendent John O’Driscoll
15. On the 14th September, 2010, Detective Superintendent John O’Driscoll testified that he swore an information before a judge of the Metropolitan District Court for the purpose of obtaining an “authorisation” pursuant to the Criminal Justice (Surveillance) Act 2009, permitting the installation/use of audio and video surveillance equipment in a specified room at the Regency Hotel. This authorisation covered the period from the 14th to the 18th September, 2010.

16. In the course of his testimony, the Detective Superintendent accepted that there were two different views within An Garda Síochána as to the utilisation of this equipment. Some members of the force believed that the use of these devices came within the ambit of the new Act, whereas others took the view that the usage of the equipment did not.

17. Additionally, Detective Superintendent O’Driscoll testified that, on the morning the 19th September, 2010, he contacted a senior officer, Detective Superintendent Johnson, seeking what is termed an “approval” on the grounds of urgency (again pursuant to the Criminal Justice (Surveillance) Act 2009) for the use of the device to be placed on UC1, i.e. the same device that had been utilised previously. This approval, stated to be pursuant to the Act of 2009, was granted by Detective Superintendent Johnson for the period 9 a.m. to 9 p.m. on the 19th September 2010. It is to be granted in circumstances of urgency identified in the Act.

18. Detective Superintendent O’Driscoll accepted a proposition, put to him in cross-examination, that he was in “no doubt” that what was proposed to be done between the 14th and 18th September 2010 at the Regency Hotel “constituted surveillance within the meaning of the [Criminal Justice (Surveillance) Act 2009]”. He accepted defence counsel’s proposition, that, having regard to the conversations recorded on the 17th September, 2010, (a Friday), and alleged to have taken place between the appellant and the undercover police officers, that the plan had changed significantly in that the proposed trip to South America had been moved back from the 18th September, 2010, to the 19th September, 2010, outside the period covered by the judicial authorisation obtained on the 14th September, 2010. The Detective Superintendent accepted he kept no written record or notes in respect of his conversation with Detective Superintendent Johnson on the morning of the 19th September, 2010, whereby, on grounds of urgency, he sought approval of a superior officer for the use of a surveillance device described in the explanation as “an audio device suitable for a jacket”.

19. The Detective Superintendent also accepted, in the context of the stated urgency of the application to Detective Superintendent Johnson on 19th September 2010, that no enquiries were made as to the availability of a judge of the District Court to hear an application for any variation or renewal of the authorisation to conduct “surveillance”.

The testimony of Detective Superintendent William Johnson
20. Detective Superintendent William Johnson was head of the Garda National Surveillance Unit at all relevant times. He testified that on the 19th September, 2010, having considered Detective Superintendent John O’Driscoll’s request, he issued an approval pursuant to the Criminal Justice (Surveillance) Act 2009 for the use of a “surveillance device” described as “an audio device suitable for a jacket” for the period 9 a.m. to 9 p.m. on the 19th September, 2010. This related to the device which had been used by UC1 throughout the operation. Detective Superintendent Johnson indicated his belief that best practice, taking into account proportionality and the rights of both the suspect and the Gardaí, required that he would authorise or approve the surveillance that would cover both the identified hotel room, and any other locations where communications would take place.

21. Under cross-examination, Detective Superintendent Johnson confirmed that the device used was issued from his unit, but denied defence counsel’s proposition that it was issued “for the purpose of surveillance” stating that “it was for the purpose of monitoring a conversation by an undercover [member of An Garda Síochána]”. The Detective Superintendent indicated he had not been made aware of a conversation recorded on the 17th September, 2010, during which the date of the planned departure of the two Polish “drug mules”, that is UC1 and UC2, to South America had been shifted from the 18th to the 19th September, 2010. He confirmed that, on the 19th September, 2010, he had discussed with Detective Superintendent O’Driscoll the possibility of seeking a further authorisation from a judge of the District Court, but that no enquiry was made as to whether a judge was available to hear such application.

The testimony of Garda UC1
22. What follows is of central importance to the nature of the transaction. The evidence of UC1 was to the effect that he used the device inter alia to record face-to-face meetings with the appellant on the 15th September, 2010. The remaining two face-to-face meetings on the 17th and the 19th September, 2010, were also transmitted using the device, but recorded by Detective Sergeant Roberts. UC1 also used a book/diary for the purpose of recording contemporaneous details of all contacts/conversations during the course of the operation. He also used recordings of the face-to-face meetings on the 17th and the 19th September, 2010, to make his contemporaneous notes in the book or diary kept for that purpose.

23. Under cross-examination, he confirmed that the device in question was the only one which had been used, that the recordings had been used to jog his memory regarding specific things that had been said when making notes; confirmed also that just after the completion of the operation, he compiled verbatim transcripts of the recordings of the three face-to-face meetings on the 15th, 17th and 19th September 2010; accepted that the contemporaneous notes recorded in the book/diary were different in some particulars from the verbatim transcripts subsequently prepared; stated that at the time of the operation he had not been briefed in relation to the provisions of the Criminal Justice Surveillance Act 2009; and accepted counsel’s proposition that during the course of the operation he was “observing”, “monitoring” and “recording” the appellant. The witness did not accept that he was at the time of the meeting engaged in surveillance.

The ruling of Dublin Circuit Criminal Court
24. On the evidence, the learned trial judge, His Honour Judge Desmond Hogan, was asked to rule as to whether the transcripts of these meetings were admissible, that is, whether the information obtained and recorded was governed by the provisions of the Criminal Justice (Surveillance) Act 2009. Counsel for the appellant contended that if it came within the ambit of the Act, the evidence should have been excluded as having been unconstitutionally obtained in breach of the appellant’s right to privacy.

25. The basis of the trial judge’s finding is, of course, fundamental. He ruled that what had taken place were face-to-face meetings and, by reason of that, they did not come within the definition of “surveillance”. He ruled that surveillance meant that there would be actions of a non-participant third party looking at and noting the activities of another party. Turning to the constitutional right of privacy, he held that a right of privacy was not engaged when the activity sought to be recorded was a criminal offence. It is necessary then to consider whether the learned trial judge was correct in law in allowing the content of these transcripts go to the jury. This is without prejudice to the appellant’s right, on any retrial, to object to the admissibility of viva voce evidence of the meetings on other grounds.

The concept of “surveillance”
26. The terms “surveillance” and “surveillance device” are both defined in s. 1 of the 2009 Act. “Surveillance” is defined as meaning:

“(a) monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications, or

(b) monitoring or making a recording of places or things, by or with the assistance of surveillance devices.”

A “surveillance device” is defined in the following way:

““Surveillance device” means an apparatus designed or adopted for use in surveillance, but does not include –

(a) an apparatus designed to visual acuity or night vision, to the extent to which it is not used to make a recording of any person who, or any place or thing that, is being monitored or observed,

(b) a CCTV within the meaning of s. 38 of the Garda Síochána Act 2005, or

(c) a camera, to the extent to which it is used to take photographs of any person who, or anything that, is in a place to which the public have access.”

27. The Oxford English Dictionary defines surveillance as “close observation, especially of a suspected spy or criminal”. The Collins English Dictionary defines the same word as being “close observation or supervision maintained over a person, group, etc., especially one in custody or under suspicion”. It will immediately be seen that the definition is “circular”, in the sense that “surveillance” involves the use of a “surveillance device”. A surveillance device is defined as an apparatus used in surveillance. The definition of surveillance is extraordinarily broad. The court is constrained to interpret and apply the term as it is defined in the statute. The court may not legislate by imparting to the term some narrower meaning which it does not have. The task of definition in a statute is a matter for the legislature. Any amendment to the Act, if deemed necessary, is also a matter for the legislature.

The appellant’s contentions
28. In essence, the appellant states that the trial judge erred in law in holding that the covert recording by An Garda Síochána of meetings held between the appellant and undercover members of the force did not constitute “surveillance” within the meaning of The Criminal Justice (Surveillance) Act 2009. It is said that the learned trial judge, therefore, erred in law in admitting into evidence the recordings and, in particular, erred in holding that the circumstances in which these recordings were made did not breach the appellant’s constitutional right to privacy and/or his rights under Article 8 of the European Convention on Human Rights (“the ECHR”).

The respondent’s submissions
29. Counsel for prosecution submitted, first, that, an authorisation pursuant to the 2009 Act was not, and is not, required for recording conversations in circumstances where a member of An Garda Síochána is a participant. Second, he submitted that the nature of the operations in which UC1 and UC2 were engaged were not “surveillance” within the meaning of the Act. He submitted the appellant had no reasonable expectation of privacy in circumstances where he met two men who had adopted fictitious identities for the purpose of soliciting them to commit a crime, and where there was no suggestion or evidence of entrapment. Were the appellant to hold such an expectation or interest, the two undercover Gardaí would, as a logical consequence, be equally prohibited from giving oral evidence of their conversations. The recording of the conversations could not, therefore, create a “privacy interest”, where none previously existed. Without prejudice to that argument, counsel also submitted that, even if an authorisation pursuant to the Act was required, no constitutional right to privacy of the appellant was breached, and that the judge was entitled to admit the evidence in the exercise of his discretion.

30. In essence, therefore, prosecution counsel’s submission is that the nature of the interaction between UC1, UC2 and the appellant could not be “surveillance” because of the interaction between the Gardaí and the subject of the operation, and that the concepts of “monitoring” and “observing” imported a distance from the subject of those activities. Whilst “listening to” can be an activity carried out by a participant to the conversation, one cannot be said to “listen to” a conversation to which one is a party “by means of a surveillance device”. Counsel contended that the concept of recording is an activity which could be equally carried out by a party to a conversation, or one at a distance, but the word should be read in the light of the Act generally which relates to activities “from afar”. He submitted that further support for that interpretation can be gained from a consideration of the devices said to be “excluded” from the definition of surveillance devices, such as CCTV, binoculars, night vision devices and cameras, all of which imply a monitoring from a distance.

31. On the assumption that compliance with the Act was necessary, counsel for the Director submitted that the intent of the legislation was simply to render lawful activities which previously would not have been such. He cited s. 2(2) of the 2009 Act, which expressly states that,

“Nothing in this Act should render unlawful any activity which would otherwise be lawful”.

He submitted that this was noteworthy in the context of possible authorisations which include the entitlement of An Garda Síochána to enter, if necessary by force, “any place, for the purpose of installing or withdrawing a surveillance device without the consent of the owner” (section 5(6). He accepted that, in that context, the power represented a significant potential curtailment of the inviolability of the dwelling which required express statutory authority.

32. By analogy, counsel urges this court to adopt interpretations of the definitions in the 2009 Act similar to those to be found in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. Section 1 of the 1993 Act defined “interception” as meaning:

“(a) An act –

(i) that consists of listening or attempted listening to, or the recording or attempted recording, by any means, in the course of its transmission, of a telecommunications message, other than such listening or recording, or such attempt, where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording.

(ii) …”

Counsel submitted that this telecommunications legislation restricted the requirement for an authorisation to a situation where a third party, not privy to the communication, seeks to listen or record.

33. Counsel pointed out that a separate authorisation had been obtained for the purpose of audio and visual recording of the hotel room. He rejected the suggestion in the appellant’s submissions that UC1 had acknowledged that he was engaged in “surveillance”, but, rather, drew attention to the fact that the Garda had denied he was engaged in surveillance but qualified references to monitoring and recording the appellant by saying that “he was with him”.

The right to privacy
34. Prior to considering the procedures adopted by An Garda Síochána in this particular case, it is necessary to consider the nature of the rights which are engaged. The right to privacy, though not specifically guaranteed by the Constitution is a personal right of a citizen which flows from the nature of the State. In Kennedy v Ireland [1987] I.R. 587, Hamilton P. stated that:

“The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely a sovereign, independent and democratic republic”.

However, he went on to observe that this right was not an unqualified right but was subject to the constitutional rights of others, and the requirements of public order, public morality, and the common good.

35. The court accepts that, as the Law Reform Commission pointed out in its Report on Privacy in 1998, a person is entitled to “reasonable expectation of privacy” even in a public place. The Commission’s Report takes care to identify context as being a major factor in determining the extent of the right of privacy and giving rise to a “reasonable expectation of privacy”. The law does not prohibit police surveillance (see Kane v Governor of Mountjoy Prison [1988] I.R. 757). The question is whether covert police activity involving aural and video devices amounts to an interference with private life.

36. As the European Court of Human Rights pointed out in Ludi v Switzerland [1992] 50 E.H.R.R. 173, the closer one is to pure criminal activity then the less is the reasonable expectation of privacy. In Ludi, the objective of the police at the outset had been to arrest, and not merely to observe or gather evidence. There is a continuum ranging from outright participation in crime to fringe, and perhaps unwitting, involvement. That court recognises that intelligence gathering is vital to the work of police force. However, Ludi did not directly address electronic means of covert surveillance. This has not been considered in any Irish authority. In general, there is a discernable qualitative difference between a face-to-face encounter between a suspect and a member of the Gardaí on the one hand, and carrying out surveillance on the other.

37. There can be no doubt that the State may make incursions into the right of privacy in accordance with law. This is particularly the case in circumstances where the State is seeking to provide in relation to “the investigation of arrestable offences, the prevention of suspected arrestable offences and the safeguarding of the State against subversive and terrorist threats”. Nevertheless that law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which public authorities are entitled to resort to such covert measures and it must provide necessary safeguards for the rights of individuals potentially affected. In the view of this court, that is precisely the intent and purpose of the Act of 2009.

38. Indeed, in the particular circumstances of this case, where one is dealing with an alleged plot to import large quantities of controlled drugs, the common good must weigh heavily in the balance. It cannot be said that the accused’s reasonable expectation of privacy extends to involvement in any such alleged illegal enterprise. That is not to say that this accused is left without protection; but to acknowledge that the safeguards granted under the 2009 Act adequately vindicate his rights in this regard.

The definition of “surveillance”
39. This Court considers that there is very considerable merit in the submission by counsel for the prosecution that the essential nature of surveillance is that it is covert and at a remove from the subject. “Surveillance” would not traditionally have been considered to include the obtaining or recording of information actually disclosed to and in the presence of an undercover garda by a person or persons unaware of the covert purpose of the personal contact.

40. It has long been accepted that the result of interpretation clauses in statutes can be to give an artificial meaning to words and to bring incongruous things within the meaning of the statute. In Savoy Hotel Company v. London County Council [1900] 1 QB 665, Channell J. stated at p. 669:

“…for the result of an interpretation clause is frequently to bring the most incongruous things within the operation of a statute”.

In Lindsay and Others v. Cundy and Another [1876] 1 Q.B.D. 348, Blackburn J. stated at p. 358:

“. . . but in the interpretation clause (s. 1) which is a modern innovation and frequently does a great deal of harm, because it gives a non-natural sense to words which are afterwards used in a natural sense, without noticing the distinction . . ..”

Similarly in Bradley v. Baylis [1881] 8 Q.B.D. 195, Brett L.J. stated at p. 230:-

“It seems to me that nothing could be more difficult and nothing more involved, than these statutes and that that difficulty arises from the fact of Parliament insisting upon saying that things are what they are not.”

A court is not necessarily entitled to interfere merely by reason of this fact, but it does raise the issue of whether the legislature intended a particular result.

41. It is, therefore, not generally open to a court to impart any other meaning or to cut down a definition found in the interpretation section of an Act, even where this results in a consequence which is unnatural or unexpected. Despite the court’s reservations as to the correctness as the choice of the term “surveillance” to cover all activities set out in interpretation section (s. 1), and the failure to elaborate on the extent of those activities, the court considers that the effect of s. 1 of the 2009 Act was to enlarge the traditional and well understood meaning of “surveillance”.

The application of the 2009 Act
42. Which actions in this case, if any, amount to surveillance? The express terms of the 2009 Act seek to confine surveillance to specified activities carried out “by or with the assistance of surveillance devices.” If such devices are not used, then the Act does not apply. It, therefore, has no application to other investigative techniques. Section 2(2) of the 2009 Act provides:

“Nothing in this Act shall render unlawful any activity that would otherwise be lawful.”

Section 14(2) provides:

“Nothing in this Act is to be construed as prejudicing the admissibility of information or material obtained otherwise than as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 .”

43. The Court must examine the actions of the members of An Garda Síochána to determine whether they fall within the scope of the Act. To do so, the Court must ask itself how the information or material was obtained. Subject to any other technical objection, the admissibility of evidence obtained directly by gardaí through their own senses, without any assistance in the form of a surveillance device, is unaffected by the 2009 Act. Therefore, evidence will fall into one of two distinct categories, evidence which is obtained “by or with the assistance of a surveillance device” and evidence which is not.

Information obtained otherwise than as a result of surveillance
44. Although UC1 was wearing a surveillance device, his interaction with the accused was not “by or with the assistance of a surveillance device”. Similarly, the interactions between UC2 and the accused were not facilitated or aided by such a device. Therefore, these face-to-face communications do not amount to “surveillance” and fall outside the scope of the Act. Subject to any other objection, there is nothing in the 2009 Act to prevent these officers from testifying as to what was said in the exchanges on the 15th, 17th and 19th September 2010.

45. Even if the Act of 2009 had not been enacted, it would not be unlawful, (subject to arguments based on the constitutional right to privacy and perhaps on Articles of the European Convention on Human Rights) for an undercover member of An Garda Síochána in the course of such an investigation as is mentioned in the preamble to the Act of 2009 to make personal contact with, or to speak to another person for the purpose of obtaining information where that other person is entirely unaware of the covert purpose of the meeting.

46. This Court considers that it was not the intention of the legislature to include within the definition of “surveillance”, investigative practices and procedures which did not require the protection of the Act in order to be lawful. To bring such practices and procedures, already subject to legal control, within the terms of the 2009 Act, could well lead to a substantial reduction in the benefits to the public good and the security of the State which the legislature was seeking to achieve in enacting the 2009 Act. A court is not under a duty to “readily adopt an interpretation which leads to an artificial or absurd result” (per Kearns J. in Director of Public Prosecutions v Moorehouse [2006] I.R. 421 at p. 444).

Information or materials obtained as a result of “surveillance”
47. However, simultaneous to these interactions, surveillance was being conducted through the use of a surveillance device worn by UC1. Other officers were or could have been “listening to” the transmitted exchanges. Recordings were either directly or indirectly made of the exchanges between the undercover police officers and the accused. Neither activity would have been possible without the use of a surveillance device. These recordings were later transcribed and the transcripts were given to the jury at the trial. The admissibility of these recordings and transcripts falls to be decided within the ambit of the 2009 Act.

The admissibility of evidence obtained pursuant to the authorisation
48. As noted earlier, the Gardaí did not comply with a requirement of the authorisation granted for the period between the 14th and 18th of September, 2010. The recordings were to be conducted in a particular location but, in fact, occurred in different locations, not covered by the authorisation. However, this failure does not render any information or materials obtained under this authorisation automatically inadmissible. The terms of s. 14 clearly demonstrate that a failure to comply with the requirements of an authorisation or approval does not, in itself, present an insuperable obstacle to the information being introduced and possibly admitted in evidence.

49. Section 14(4) of the Act grants a discretion to a trial judge to admit evidence obtained through surveillance “notwithstanding any failure by any member of the Garda Síochána … to comply with a requirement of the authorisation or approval concerned”. This not an absolute discretion, but one which is dependent on the intentions of the member(s) concerned and the interests of justice. In full, s.14(4) of the Act of 2009, provides:

“(a) Information or documents obtained as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 may be admitted as evidence in criminal proceedings notwithstanding any failure by any member of the Garda Síochána, member of the Defence Forces or officer of the Revenue Commissioners concerned to comply with a requirement of the authorisation or approval concerned, if the court, having regard in particular to the matters specified in paragraph (b), decides that –

(i) the member or officer concerned acted in good faith and that the failure was inadvertent, and

(ii) the information or document ought to be admitted in the interests of justice.

(b) The matters referred to in paragraph (a) are the following:

(i) whether the failure concerned was serious or merely technical in nature;

(ii) the nature of any right infringed by the obtaining of the information or document concerned;

(iii) whether there were circumstances of urgency;

(iv) the possible prejudicial effect of the information or document concerned;

(v) the probative value of the information or document concerned.”

50. There is no evidence of any mala fides or deliberative or coercive act by members of An Garda Síochána. It was the evidence of Detective Superintendent John O’Driscoll that there was, in September, 2010, a bona fide difference of opinion within the ranks of senior officers in the Garda Síochána as to whether or not the activity of obtaining and recording information disclosed to and in the presence of an undercover garda by a suspected malefactor, who was unaware of the covert purpose of the meeting, required authorisation under the 2009 Act, it being then a relatively new and untried piece of legislation (it became operational on the 12th July, 2009). It was for the trial judge to weigh the factors contained in s. 14(4)(a) and (b) in coming to decision whether or not to admit the evidence obtained. He had the benefit of hearing all the evidence in the case and assessing their demeanour. This Court following a long-established dicta of the Superior Courts will not attempt to second-guess a trial judge in the exercise of his discretion unless there is shown to be a manifest error in his reasoning. Given the evidence of confusion in the ranks of senior officers of An Garda Síochána as to the scope and administration of the provisions of the 2009Act, then a relatively new Act, this court is not convinced that a manifest error has been shown in the judge’s reasoning and, therefore, will not interfere with his decision to admit the transcripts of the recordings of the 15th and 17th September, 2010.

The admissibility of evidence obtained pursuant to the approval - the urgency issue

51. The approval for surveillance provided for in s. 7(2) of the Criminal Justice (Surveillance) Act 2009 purporting to permit the use of “a surveillance device” capable of being covertly placed in a jacket was given by Detective Superintendent William Johnson on the morning of the 19th September, 2010, to Detective Superintendent John O’Driscoll. This was for surveillance on the 19th September, 2010, and was for a limited time. The approval here is to be distinguished from a judicial authorisation granted in the context of the incursion into the constitutional right engaged.

52. However before “approval” for surveillance is granted by a superior officer of An Garda Síochána, s. 7(2) of the 2009 Act provides that the issuing officer must be satisfied that one or more conditions of urgency as outlined in the subsection apply. These include absconsion, obstruction of justice, destruction of evidence or the security of the State. Neither Detective Superintendent Johnson, nor Detective Superintendent O’Driscoll made any notes as to the circumstances or the grounds upon which the “approval” was issued. Notwithstanding the absence of any such notes, both senior officers stood over the proposition that “circumstances of urgency” were discussed between them prior to the granting of the “approval”. But these were insufficiently specific. No reasonable explanation was, however, given to the trial court for the failure to obtain a further judicial “authorisation” or renewal of the exiting one.

53. In DPP v Peter Byrne [2003] 4 I.R. 423, the Supreme Court, in interpreting the provisions of s. 8(2) of the Criminal Justice (Drug Trafficking) Act 2006 (providing for the issue of a search warrant by an officer of An Garda Síochána in circumstances of urgency), held that an application for a search warrant by a member of an Garda Síochána had to be made to a District Court judge or a peace commissioner unless the very limited circumstances permitting the application to be made to a superintendent were present, and those circumstances had to be demonstrated for the warrant to be valid. Hardiman J. stated:

“…it is not the case that An Garda Síochána are free to choose whether they will apply for a warrant to a judge or a peace commissioner or to a superintendent. They must apply to a judge or a peace commissioner unless the very limited circumstances which permit them to apply to a superintendent are present. These circumstances must be demonstrated to be present for the superintendent’s warrant to be valid … It may indeed have been impractical to get a district judge or a peace commissioner at that moment but, as to whether that justification can prevail when there has been a long period of surveillance and when an urgent call was made to the Chief Superintendent to get him to attend and no call was made to any other person entitled to issue a warrant, we need say no more other than that a grave legal issue arises.”

The observations made in the Byrne case are very much on point on this issue. An Garda Síochána are not free to choose whether they will apply for an authorisation to a judge or an approval from a superior officer. The Gardaí must apply to a judge, unless identified circumstances of urgency are present when an approval may be valid. When there is no evidence that any attempt was made to apply to a District Judge for variation or renewal of an authorisation, and where there is no clear evidence of one of the exceptions provided for in the section, the State has failed to demonstrate that the approval was validly granted. It is now well known that District Judges can be available for applications of this type at any time, particularly so when the relevant information as to the different departure date, the 19th September, 2010, was available two days earlier on the 17th September, 2010, a Friday.

The interaction between this approval and s. 14(4) of the 2009 Act
54. The statutory position in Byrne differs from this case in one important particular. Section 8(2) of the Criminal Justice (Drug Trafficking) Act 1996, which was in issue in Byrne is not accompanied in the other sections of the 1996 Act by a section in similar terms to s. 14(4) of the 2009 Act, granting a discretion to trial judge to admit evidence obtained where there has been non-compliance. This Court must therefore consider the failure to apply for an authorisation in the period available in the context of the s. 14(4).

55. What is the extent of the discretion afforded to a trial judge by s. 14(4)? It appears to the Court that the discretion is limited to the admission of evidence of information or material obtained where there has been a failure to comply with a requirement of that authorisation or approval. It does not extend to information or materials obtained under an invalid authorisation or approval as s. 14(4) is dependent on there being “an authorisation or … an approval granted in accordance with section 7 or 8”. In other words, for s. 14(4) to apply, a validly granted authorisation or approval is a pre-requisite. That prerequisite is not satisfied on the evidence.

56. In light of the findings above that there were no circumstances of urgency in which it would be necessary to grant an approval, and that, therefore, no valid approval could issue under s. 7, it follows that the trial judge would not have had a discretion under s. 14(4) to admit the evidence in respect of the recordings/transcripts of the conversation on the 19th September, 2010. These materials should not have been made available to a jury.

Conclusions
57. In summary, therefore, the court concludes that although the undercover Gardaí were participants in a “surveillance” operation, they were equally engaged in normal investigative work, independent of any “surveillance device”. As such, and subject to admissibility otherwise, the undercover gardaí are not affected in their ability to give viva voce evidence of what they perceived through their own senses in their interactions with the accused in any retrial by virtue of the 2009 Act.

58. However, the actions of the gardaí in recording/transmitting the exchanges between the 15th and 19th did amount to “surveillance”. This does not automatically render the evidence obtained in that manner inadmissible. Rather, it must be considered in the context of s.14(4) of the 2009 Act, which grants a trial judge a discretion to admit “surveillance” evidence obtained in non-compliance with a valid authorisation/approval if certain conditions had been satisfied. That is what has happened here in respect of the recordings obtained pursuant to the authorisation covering the period from the 14th to the 18th September, 2010. This Court sees no manifest error by the trial judge in the exercise of his discretion and will not interfere with his decision to admit this evidence.

59. However, this discretionary power of the trial judge under s. 14(4) does not extend to evidence obtained where there has been no valid authorisation or approval. This Court deems the approval granted for the 19th September, 2010, to be invalid as there is no evidence that any circumstances of urgency, as prescribed by s. 7(2) of the 2009 Act, were present. Absent clear compliance with the provisions thereof, the conclusion of this court is that the admissibility of the transcripts of the recordings on that date should not have been permitted.

60. As relevant and inadmissible evidence was been placed before the jury, the court has no alternative but to quash the conviction and order a retrial.

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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Idah [2014] IECCA 3 (23 January 2014) URL: http://www.bailii.org/ie/cases/IECCA/2014/C3.html Cite as: [2014] IECCA 3

Irish Court of Criminal Appeal