Judgment of O’Donnell J delivered on 10th May 2016
1 I am happy to adopt the account of the relevant facts and legislation as set out in the judgment of Charleton J. I also agree with his conclusion that the evidence of the cocaine found in the package addressed to a Mr Johnson Kelly, and found at the address in Phibsboro, and indeed the other items of evidence found there, namely, cannabis resin and a forged driving licence, were admissible evidence at the trial of the respondent, and no issue arose which either permitted or required the exclusion of such evidence. Accordingly, the learned Circuit Court judge was, in my view, wrong to exclude the evidence. I have, however, arrived at that conclusion by a somewhat different route. Because these issues are likely to reoccur under this and similar legislation, I set out my reasoning briefly hereunder.
2 It is important to keep in mind that the respondent here was not charged with any offence in relation to interference with a postal packet. The offences with which he was charged were of possession of various drugs, which had been found in an apartment he was then occupying, following a search conducted pursuant to a search warrant issued under s.26 of the Misuse of Drugs Act 1977 as amended. The case against the accused did not rely on evidence of the opening of the packet in Store Street. The prosecution, at least initially, had not even sought to adduce any evidence of what occurred in Store Street Garda Station as part of the prosecution case against the accused. The issue of interception of the postal packet was important not because of the admissibility in evidence of the opening of the packet in Store Street, but rather because of what was alleged to be the downstream consequences in respect of the warrant, and therefore the search, and ultimately the evidence that was found as a result. The argument as to admissibility of evidence arose because it was argued that what had occurred earlier at Store Street Garda Station was an interception of a postal packet, requiring authorisation of the Minister under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. This, in turn, required a consideration of whether the opening of the package constituted a breach of s.84 of the Postal and Telecommunications Services Act 1983, which creates an offence of opening or attempting to open, delaying, detaining or tampering with any “postal packet” otherwise than under lawful authority set out in that section. If so, it was said on behalf of the accused, this had a domino effect: it meant that the evidence obtained in Store Street Garda Station could not itself be the basis for a valid application for a search warrant. The warrant, although regular on its face and supported by information justifying its issuance, was therefore invalid. As a consequence, the evidence obtained on foot of the warrant was, it was said, wholly inadmissible.
The legal argument made, therefore, depends for its starting point on an assertion that a criminal offence had been committed under s.84 of the 1983 Act, or at least, that an interception had occurred which, under the 1993 Act, required authorisation which had not been obtained. I agree at the outset that what happened in Germany is not dispositive for the purposes of this case. Even allowing for the fact that the package was identified by German authorities, and collected by a member of An Garda Síochána in Germany and brought to Ireland, the question remains whether the package addressed to Johnson Kelly was a “postal packet” within the meaning of the s.84 of the 1983 Act, and s.1of the 1993 Act, when opened, as it undoubtedly was, in Store Street Garda Station.
4 The central question here, therefore, is the statutory definition of “postal packet”. I gratefully adopt the statutory genealogy carefully set out in the judgment of Charleton J. Accordingly, the term “postal packet” in the 1993 Act has the same meaning as it had in the 1983 Act. Under s.2(2) of that Act, it appears that any term used in the 1983 Act which had appeared in the Post Office Act 1908 has a meaning ascribed to it by that earlier Act. By s.89 of that Act, a “postal packet” was defined as:
“…a letter, post card, reply post card, newspaper, book packet, pattern or sample packet, or parcel, and every packet or article transmissible by post ….” (emphasis added)
5 The literal meaning of the last words in this phrase certainly suggest that the statutory definition captures a parcel capable of being transmitted by post as well as one which is in the course of transmission. I do not think that s.5 of the Interpretation Act of 2005 is of assistance here, since in the first place that section does not apply to a provision which “relates to the imposition of a penal or other sanction”. In any event, I doubt that the definition of a postal packet as one “transmissible by post” is itself potentially absurd as a definition, nor is it necessarily absurd in the broader context of section 84. It is not impossible that the legislature intended to capture interferences with packets both before and after they had been consigned to the postal system.
6 I agree that s.66 of the 1983 Act provides that postal packets “in the course of post” shall be immune from examination and seizure except as provided for by law. But I do not consider that that resolves the issue, since s.84 creates a specific offence and does not include the same phrase. Whatever the logic, the fact that s.66 refers to postal packets “in the course of post” and s.84 does not, tends against interpreting the phrase on its own as incorporating the concept of being in the course of post.
7 It also seems to me that a consideration of the legislative history leads to the conclusion that the term “transmissible by post” has its ordinary meaning. It is agreed that the references in the 1983 Act (and therefore the 1993 Act) have the same meaning as that contained in the 1908 Act. It is, therefore, telling that ss. 50, 54 and 55 of the 1908 Act create a number of offences of interference with or stealing of postal packets, in each case described as being postal packets “in the course of transmission by post”. Perhaps significantly, whereas s.55 and s.56 deal with offences which can be committed by an officer of the Postmaster General, s.54 provides for offences committed by a person not in the employment of the Postmaster General. Section 54(4) states that a “letter in this section means a postal packet in the course of transmission, by post and any other letter which has been delivered by post”. Again, in this respect, it is significant that the Larceny Act 1916 sought to codify criminal law in respect of offences of dishonesty, and reproduced portions of ss. 50, 52 and 55 of the Post Office Act 1908. Thus, s.12 of the Larceny Act 1916 created an offence of, inter alia, stealing from a “postal packet in the course of transmission by post”. It seems to me, therefore, that this is suggestive of postal packets having a broad definition, which required that when the offences were specified, the term had to be specifically limited by the phrase “in course of transmission by post”. Counsel for the respondent also points out that the same conclusion can be arrived at by a consideration of the 1983 Act. Section 83 of the 1983 Act has been repealed by the Provisions of the Communications Regulation (Postal Services) Act 2011, but was in force at the time of the alleged offences. In any event, I think it is permissible to have regard to a repealed provision for the purposes of understanding language used in the rest of the Act, unless it appears from the subsequent amendment that it was intended to alter the scope of the provision. Section 83 of the 1983 Act provides, inter alia, that the company may “(a) refuse … postal packets which do not comply with schemes under section 70 or with the provisions of this Act, or which consist of or obtain objectionable matter”. The power of refusal seems to be inconsistent with the argument that a postal packet must mean an item which is already within the postal system of the State. As Bennion on Statutory Interpretation, 5th Ed., (UK, 2008), states, at p. 1160:
“It is presumed that a word or phrase is not to be taken as having different meanings within the same instrument, unless this fact is made clear. Where therefore the context makes it clear that the term has a particular meaning in one place, it will be taken to have that meaning elsewhere.”
8 Counsel for the respondent also points out that an interpretation of “postal packet” as meaning only such matters which are within the postal system of the State would mean that, among other things, s.66 of the Act of 1983 was at best tautologous in providing that postal packets “in course of post” shall be immune from examination, detention or seizure. Indeed, on one view, it would lead to an interpretation of the term postal packet which was not just different from, but contradicted the statutory definition. A postal packet, while statutorily defined as a packet transmissible by post, would be limited to one being transmitted by post. Accordingly, for all these reasons, I would not be prepared to hold that a postal packet for the purposes of the 1983 and 1993 Acts must be read as limited to postal packets in the course of transmission by post.
9 However, I fully agree with Charleton J. that even if this is a postal packet to which both s.84 of the 1983 Act and s.1 of the 1993 Act applies, that the opening of it by members of An Garda Síochána in the course of their duty in Store Street Garda Station, and within the State, was not a breach of s.84 or an unauthorised interception. Section 84 permits the opening of a postal packet in a number of circumstances, one of which is where such opening is permitted “under other lawful authority”. Section 177 of the Customs Consolidation Act 1876 provides for a power to forfeit prohibited goods. Section 14(1) of the Post Office (Parcels) Act 1882, provides that “the provisions of the Acts for the time being in force relating to the Customs … shall apply to goods contained in foreign, parcels … and goods may be examined, seized and forfeited and the officers examining and seizing them shall be protected”. These sections expressly give officers of Customs and Excise authority to examine, seize and forfeit any prohibited goods, which must include controlled drugs. The next step is that s.5 of the Illicit Distillation (Ireland) Act 1857 provides that members of the Constabulary (and now therefore members of An Garda Síochána) “shall have, use, and exercise all the powers and authorities, and have and possess all the privileges, granted to officers of Excise … and have and possess all the privileges, which are or may be exercised, had, or possessed by any officer of Customs under the Customs Consolidation Act, 1853, or any other Act now in force or hereafter to be passed, in relation to the Customs, so far as relates to any seizure, detention or prosecution which may be made or had under any such Act or Acts and shall be deemed and considered to be officers of Customs for such purposes”. Although the learned trial judge doubted that other lawful authority had been shown, I am satisfied from the transcript that sufficient reference was made to these provisions in the trial court. I fully agree with Charleton J. that there is an important distinction between powers of compulsion exercised in relation to citizens and other individuals, and powers of seizure and interception of inanimate objects. There is no requirement of incantation of a particular power before a package can be opened. A package cannot decide whether to submit or not. Nor is it necessary that the power be in the mind of the relevant garda at the time. The only question is whether what was done was lawful. That is answered by an analysis of the relevant provisions of the customs Consolidation Code as applied to members of An Garda Síochána. If Inspector Carolan had been prosecuted for the offence under s.84, he would have been able to establish a valid defence that he was acting under lawful authority, although in any such prosecution it might not have been necessary to get to that point: the prosecution would not have been able to exclude the defence.
10 In such circumstances, there was no illegality in the opening of the packet. It followed that the sequential argument advanced by the respondent ought to have failed. Accordingly, it is not necessary to consider here whether, if it had been established that there had been a breach of s.84 or an unauthorised interception, that would have prevented the information obtained as a result thereof from being relied on to obtain a warrant, and thus, in turn, invalidated the warrant. (See D.P.P. v. Cash [2010] I.R.609). Similarly, it is not necessary to consider what consequence for the admissibility of evidence would follow from any such potential invalidity. (See D.P.P. v. J.C. [2015] IESC 31). Finally, I should say that while this case was not argued on the basis that there was any right of privacy involved in the opening of a postal package addressed to a fictitious addressee and received by an individual, I would not wish to be taken as accepting, at least without more extensive argument, that no constitutional right was involved here. That may be important in other cases. However, since it is clear that if the above analysis is correct there can have been no improper interference with any possible privacy interest, it does not require to be determined here.
Judgment of Mr Justice Charleton delivered on Tuesday the 10th day of May 2016
1. At issue on this consultative case stated is the lawfulness of the gardaí taking custody in Germany, and opening in Dublin, a parcel containing cocaine posted in Brazil to an address in Phibsboro. The parcel contained a hollowed out book filled with a substantial quantity of cocaine. Because of a ruling adverse to the prosecution as to the lawfulness of those actions by Judge Franklin O’Donnell, at his trial in the Circuit Criminal Court the original accused, now the respondent, was acquitted of all the offences that he had not already pleaded guilty to. Under s. 34(5) of the Criminal Procedure Act 1967, as inserted by s. 21 of the Criminal Justice Act 2006, his anonymity is to be secured on this without prejudice appeal and so he will be referenced as Robert. While the parcel was not addressed to him by name at the flat where he lived, the prosecution case was that he took possession of it as part of a criminal drug-supply business. The gardaí had delivered the parcel into Robert’s hands, as if in the ordinary course of post, and then obtained search warrant. On searching Robert’s flat, they found the parcel unopened on a shelf, a large slab of cannabis valued at €5,700 and 6 false driving licences. All of that evidence was ruled inadmissible but Robert had already pleaded guilty in the Circuit Criminal Court to 2 counts in the indictment under the Misuse of Drugs Acts 1977-1984 charging simple possession of cannabis and possession of same for the purpose of supply. The acquittals by direction of the trial judge were for: possession for the purpose of supply of the cocaine in the parcel, said to have a value above €19,840; possession of that cocaine for the same purpose, but without a value ascribed; possession of that cocaine; and possession of false instruments, namely the driving licences.
2. This case was stated under a reference dated 10th March 2010, by Judge Franklin O’Donnell. Section 34 of the Act of 1967 enables this appeal by the Director of Public Prosecutions. Following a “verdict or decision in favour of the accused person” the Director “may refer a question of law arising during the trial to the Supreme Court for determination.” The questions posed by the Director for decision by this Court are:
1. Where the Irish law enforcement authorities suspect that an item of contraband is being sent from outside the jurisdiction to an intended recipient in the State, and where a decision is taken to effect a controlled delivery of that item, is such a delivery an interception for the purposes of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act 1993 for which an authorisation from the Minister for Justice pursuant to section 2 of that Act is required where:
(a) The item is intercepted and removed from the postal system by foreign authorities before it reaches this jurisdiction and/or
(b) The members of An Garda Síochána and/or officers of Customs and Excise exercise their powers under section 14(1) of the Post Office (Parcels) Act 1882 and/or section 7 of the Criminal Justice Act 2006 to examine and/or seize that postal packet.
2. In the event that such an authorisation is required but not obtained, is evidence comprising the contents of such a packet obtained in breach of the constitutional rights of an accused who is the intended recipient of the packet where in fact it contains contraband, mandating the exclusion of the evidence in the trial of such an accused, or is the evidence obtained illegally so as to confer a discretion on the trial judge to admit same?
Background
3. Postal packets and letters are normally protected by legislation against any interference. The relevant law is set out below. This evidence was excluded because the trial judge considered that an unlawful interference had taken place and that the warrant grounding the search was also bad because it was applied for on foot of an unconstitutional discovery of information about the drugs in the parcel. Judge O’Donnell’s ruling was based on these facts. About a week after the parcel had first been posted from Brazil, an officer of Customs and Excise in Dublin was alerted that a suspect package had been identified in Frankfurt, Germany, emanating from Brazil and addressed to the unusually named “Johnson Kelly” at an address in Phibsboro, Dublin 7. That officer travelled to Frankfurt and took control of that package, without opening it, and brought it back to Dublin, to the drug unit at Store Street garda station. There, the package was opened by Inspector William Carolan. It contained a children’s book, the pages of which had been cut out to form a cavity and this had been filled with a white powder, which subsequently was tested as cocaine. The gardaí and the officers of customs considered that no legal protection of the integrity of the parcel was involved. They thought that since the interception had been made in Germany that the item opened in Dublin was not then a postal packet. They resealed the package and set up what was called a “controlled delivery”. Detective Sergeant Kenneth Donnellan posed as a postman and called to Robert’s flat in Phibsboro. This was an upper-storey apartment accessed through a communal entrance with a set of individual post-boxes for the apartments. Detective Sergeant Donnellan went through that communal hallway and knocked on the front door of Robert’s apartment. The door was opened by Robert, who examined the package, turning it over a couple of times and then took it inside. Telephone contact was immediately made with Inspector Carolan who obtained, from the District Court, a search warrant for the premises on suspicion that a controlled drug would be found there. That search happened about 15 minutes later. As he and his garda search team went up the stairs, they encountered Robert, originally from Nigeria, coming down. The gardaí identified themselves and showed him the search warrant and returned to the flat with him in order to search it. The package containing the cocaine was inside a small bedroom, on a shelf at the top of a black bookcase, unconcealed and unopened. When asked, Robert said there were no other drugs in the apartment: however, this was not so. Herbal cannabis in two lots, one of approximately 1 kilogram and a second of approximately 2 kilograms, totalling 2.815kgs, valued at €5,700, as well as 6 forged driving licences were located behind the cooker hood in the kitchen. The accused was arrested and detained at Store Street Garda Station. In interview, he accepted that he knew about the cannabis because, as he claimed, a friend had brought it to the apartment, having had some difficulties with his landlord, and that he had agreed to keep it in his apartment until Friday. He said that he knew that it was “cannabis, smoke”. He claimed that he knew nothing of the forged documents that were with the cannabis and that this friend had put a folder in the cooker hood. He told the gardaí that he knew nothing about the package that had just been delivered ‘by post’ and that because he thought it was a letter from the Department of Justice he just put it in the bookcase. He also explained that there were post-boxes downstairs for the apartments but because these easily became full, he had told the postman to bring his post up to him. He stated that he checked such post and if it was not for him, he took it anyway and put it later in the post box downstairs. He claimed that on a previous occasion, when he received a box from the postman not addressed to him, but to a “Patrick,” he had done that. He asserted that a man, who he described as “a black guy”, used to come and collect envelopes and had previously collected an A3 sized envelope originating from Brazil. He did not know who the addressee ‘Johnson Kelly’ was, but the implication was, during 5 interviews with various members of the gardaí during his detention in Store Street, that this was perhaps the person referred to on the address label. When asked to explain how someone had put a quarter of a kilo of cocaine in a package in Brazil and posted it to his address, he said: “I have nobody in Brazil. I don’t know anything about the envelope. I thought it was from the Justice [Department] so I put it in the bookcase. That’s when you saw me on the staircase.”
4. In terms of proving possession, the trial judge did not perhaps consider these particular facts to amount to the strongest of cases on the charges based on possession of the cocaine. During the second day, referencing the delivery he commented:
But if you were looking at them and saying, “Wait a minute, hold on, hold on. Before you open this, this is addressed to some person. This is addressed to somebody. Yes, right, what can be done? Dodgy.”
5. On this appeal, both parties were agreed that relevant powers of search and sampling were either inapplicable, because the parcel was not in the course of transmission by post, or, if it was in the postal system, arose pursuant to a complex statutory matrix which included the Post Office Act 1908, the Postal and Telecommunications Services Act 1983 and the Interception of Postal Package Telecommunications Messages (Regulations) Act 1993. On behalf of Robert it was contented that the parcel had been a postal packet, the ordinary transmission of which was protected by statute and that no legal authority had been established for interfering with it. This, as counsel for Robert had also argued at the trial, was an illegal action and constituted a breach of his legal entitlement not to have his post interfered with. At that trial, counsel for Robert had claimed that a breach of the constitutional right to privacy had occurred should no legal basis for interfering with the parcel be established. These arguments were maintained on this appeal, save that only an illegality was contended for and not the breach of any constitutional right to privacy. Thus, whether interception of a criminal communication is not commented on here in relation to privacy rights. The consequence of a finding of illegal interference with drugs in the post, it was contended for Robert, would be that the trial judge would be entitled to balance the gravity of that legal wrong against the circumstances, including the serious nature of the charge, and to exercise his discretion to exclude the evidence. This, counsel for Robert argued on the appeal, was the import of Judge O’Donnell’s ruling at the trial. For the Director of Public Prosecutions it was countered that the parcel intercepted in Germany and opened in Dublin by gardaí was not protected by any legislation making the interception of postal packets a criminal offence. Should that argument be wrong, it was argued, Inspector Carolan, though not actually adverting to the power in his evidence, would have been entitled to rely on other legal entitlements pursuant to customs statutes to examine and redirect parcels in the course of transmission by post. No constitutional right to privacy was engaged on these facts, it was said, and the matter of admissibility was one for the balancing of rights, should an illegality be found by this Court on appeal. While, it was agreed, this alleged illegality if sustained involved discretion in the trial judge to admit or exclude the evidence, that discretion had been wrongly exercised in this case according to the Director of Public Prosecutions.
6. The trial judge considered that the interference with the parcel had been unlawful. He ruled out that evidence. He also held that the consequential application for a warrant had been tainted by the breach of the rights of the accused and excluded all evidence resulting from the search. As will be seen, save for the concession on behalf of Robert that no constitutional right to privacy had been engaged in these circumstances, the same arguments as at trial were rehearsed on this appeal. In the absence of the jury, this was the ruling of the trial judge:
I have considered all your submissions and on the basis of the facts is disclosed in this particular case, I am satisfied that the relevant packaging issue is, in fact, a postal package is defined in the Post Office Act 1908, and as such is entitled [to] the protection bestowed on it by the definition section of the Interception of Postal Package Telecommunications Messages (Regulations) Act 1993, which deems certain act to constitute an interception and as such, for the purposes of this ruling, [is] an offence within section 84(1) of the Postal and Telecommunications Services Act 1983, because I am not satisfied that it has been shown to the Court specifically were this “other lawful authority” is, as referred to in section 84(2)(c), is relied on by the prosecution and I feel to decide otherwise in the context of the facts and submissions, particularly the belief by Inspector [Carolan] that he was entitled to open the package because it was not subject to the relevant [legislation] would constitute a quantum leap that the Court is not prepared to justified in taking. On the basis of the facts as disclosed, I feel it would be unfair to deem the fruits of an unlawful act in the context of the facts here is admissible as such.
On the basis of an application at trial by counsel on behalf of Robert, the trial judge, while accepting “entirely the bona fides of the Inspector in relation to the matter”, ruled that the warrant to search the flat should be struck down and that therefore no consequent evidence would be admissible against him, including what was found there and later admissions by him. Addressing the jury and instructing the foreman to enter verdicts of not guilty by direction on all of the remaining counts on the indictment the trial judge stated:
Suffice it to say that in the absence of the permission of the relevant Minister to open postal communications, the legislation in this particular case was not established that I was satisfied legally that the gardaí were entitled to open that communication and, as such, anything that flowed from it was tainted and not admissible as evidence and that’s the reason why so that you’re in - so that you understand, the guards and customs people are necessary can always obtain the permission of the Minister; that wasn’t done because the guards felt that they were under time constraints and had certain difficulties in relation to us. But can only do what the law as it is and that’s the explanation. The task you have performed is never an easy one, to sit in judgement on one’s fellow men.
The legislation
7. Much of the relevant legislation dates back to the time of novelist and postal service surveyor, Anthony Trollope. Statutes providing for a postal service in England date back to the reign of Queen Anne, with the Post Office (Revenues) Act 1710. Thereafter, there are dozens of legislative measures. With the creation in Ireland in 1983 of commercial companies for the purposes of running the postal service and the telecommunications network, thus replacing much of the function of the Department of Posts and Telegraphs, modern legislation repealed much of the Victorian structure but, in parts, the Oireachtas was disposed to retain some of it. This has two consequences. Firstly, in terms of protection against interference with telecommunications or communications by post, and whether a lawful authority exists to intercept these, a wide range of applicable legislation must be searched, checking for amendments and cross references before any certainty as to the result might be achieved. Indeed, some of the legislation below referenced has since been changed, inter alia by the Communications Regulation (Postal Services) Act, 2011. Secondly, the modern approach to legislation differs from that of centuries ago, with definitions then applicable in terms of a historically extant legislative structure difficult to make sense of where these are simply removed and applied over 100 years later, even discounting the differences in the use of language.
8. Central to this appeal is the definition of what is a “postal packet”. This is defined in s. 89 of the Post Office Act, 1908, then a consolidating and restating enactment, as “a letter, post card, reply post, card, newspaper, printed packet, pattern or sample packet, or parcel, and every packet or article transmissible by post, and includes a telegram.” That section is still in force. One is in no way helped in the search for elucidation by a further definition in s. 1 of the Act of 1993 which states that:
“postal packet” and “telecommunications message” have the meanings that they have respectively in the Act of 1983, but, for the avoidance of doubt, it is hereby declared that the latter expression includes a telegram.
Regrettably, that Act of 1983 does not address this definition but, in turn, references the Act of 1908 for “any word or expression to which a particular meaning” was therein ascribed; s. 2(2). The 1908 definition could lead to absurd results if read literally and out of context. Almost anything apart from live animals and contraband is legally transmissible by post and once an article or letter or newspaper is put into a box or an envelope with an address on same is capable of meeting that literal description of a postal packet. A perusal of the Act of 1908, however, much of it repealed, shows that it had always been part of the scheme of the legislation that there should be postal facilities, such as post offices and letter boxes under ss. 80 and 81, that someone should be in charge of them, once the Postmaster General, that stamps in various forms could be issued and must be purchased for postal transmission from licensed sellers and that it was wrong under s. 50 to steal mail, to divert post under s. 54 or to open or delay a postal packet under s. 56. Apart from diversion, such diverse offences of interference with the mail were only capable of being committed on letters and parcels “in the course of transmission by post”. That background scheme of the 1908 Act continues in our modern postal system. Under section 74 of the Act of 1908, for the purposes of prosecuting any relevant offence “evidence that any article is in the course of transmission by post, or has been accepted on behalf of the Postmaster General for transmission by post” constituted sufficient evidence that it was a postal packet. This was in force at the time of this prosecution, though has since been repealed by the Act of 2011. This legislative matrix clearly implies that the absurd results that otherwise might have to be avoided through the application of the cannon of construction against absurdity are not encapsulated in the central definition from s. 89 of the Act of 1908 that continues in force. That absurdity rule can only affect ambiguous wordings. There is no power, such as that under s. 5 of the Interpretation Act 2005 available in penal statutes. It is not necessary here. The 1922 edition of Archbold - Pleading Evidence and Practice in Criminal Cases (London, 1922, Roome and Ross editors) at pages 579-597 reference posting as a proof of such offences, citing R v Ryan [1905] 9 Canada Cri Cas 347. That conclusion is reinforced by s. 66(1) of the Act of 1983, in force during the trial, which declares that:
Postal packets and mail bags in course of post shall be immune from examination, detention or seizure except as provided for under this Act or any other enactment.
9. Section 84 (1) of the Act of 1983, also in force at the time, defines the criminal offence of interference with mail in the following terms:
A person who—
(a) opens or attempts to open a postal packet addressed to another person or delays or detains any such postal packet or does anything to prevent its due delivery or authorises, suffers or permits another person (who is not the person to whom the postal packet is addressed) to do so, or
(b) discloses the existence or contents of any such postal packet, or
(c) uses for any purpose any information obtained from any such postal packet, or
(d) tampers with any such postal packet,
without the agreement of the person to whom the postal packet is addressed shall be guilty of an offence.
(2) Subsection (1) shall not apply to any person who is acting—
(a) in virtue of any power conferred on the company by section 83, or
(b) in pursuance of a direction issued by the Minister under section 110, or
(c) under other lawful authority.
(3) (a) The company may, with the consent of the Minister, make regulations to carry out the intentions of this section in so far as concerns members of its staff.
(b) The Minister, after consultation with the company, may direct the company to make regulations under paragraph (a) or to amend or revoke regulations made under that paragraph and the company shall comply with that direction.
(c) A person who contravenes any regulation under this subsection shall be guilty of an offence.
10. To this must be added the definition of what an interception of mail constitutes from s. 1 of the Act of 1993 which was applicable in this form at the time of the trial:
interception” means—
(a) an act—
(i) that consists of the opening or attempted opening of a postal packet addressed to any person or the delaying or detaining of any such postal packet or the doing of anything to prevent its due delivery or the authorising, suffering or permitting of another person (who is not the person to whom the postal packet is addressed) to do so, and
(ii) that, if done otherwise than in pursuance of a direction under section 110 of the Act of 1983, constitutes an offence under section 84 of that Act.
11. To this legislative weft should be woven in the powers to interfere lawfully in the transmission of mail. These inure to the benefit of investigating authorities, which would include gardaí and customs officers. Section 2 of the Act of 1993, edited down as is necessary to find the sense thereof, provides:
The Minister may give an authorisation, but only for the purpose of criminal investigation or in the interests of the security of the State, [such] … an authorisation shall be given by warrant under the hand of the Minister, [but if] the Minister considers that the case is one of exceptional urgency, an authorisation may be given orally (whether by telephone or otherwise) by the Minister and, if it is so given, it shall be confirmed, as soon as may be, by warrant under the hand of the Minister. The nominated officer shall maintain a record of any authorisations given … The Minister shall not give an authorisation unless he considers that the conditions specified in section 4 or 5 of this Act, as may be appropriate, stand fulfilled, and that there has not been a contravention of section 6 of this Act, in relation to the proposed interception.
The conditions under the section require: that the warrant bear the date of the authorisation; specify whether the interception is for a postal packet or a telecommunications message; and indicate the postal address to whom the interception relates or the telecommunications address. In addition, the warrant may require the person to whom the postal package or telecommunication is addressed to disclose the intercepted material to a person specified in the warrant. In any event, both parties on this appeal are agreed that the Minister was never approached seeking any authorisation for opening this particular parcel. In addition, however, there are powers under legislation relating to customs. Here, the trail becomes even more complex and again references the Victorian era. Then the frontline war in substance abuse may have been to towards the suppression of poitín distillation but now it is now more against illegal drug supply. Even still, the legislation from that time can assist law enforcement today. As outlined to the trial judge by prosecution counsel and as submitted on this appeal, and accepted on both sides, a member of An Garda Síochána can act as a customs officer and exercise all the relevant powers of such an officer. This derives from s. 5 of the Illicit Distillation (Ireland) Act 1857 which states:
All officers of the said constabulary force, appointed or to be appointed under any Act relating to the said force, or under this Act, shall have, use, and exercise all the powers and authorities, and have and possess all the privileges, granted to officers of Excise in relation to any offence committed or to be committed, or suspected to be committed, under or contrary to the Illicit Distillation (Ireland) Act, 1831, or in relation to any offence mentioned in the one hundred and thirty-eighth section of the Act passed in the sixth year of the reign of King George the Fourth, chapter eighty, which said last-mentioned section is hereby extended to Ireland, and shall have, use, and exercise all the powers and authorities, and have and possess all the privileges, which are or may be exercised, had, or possessed by any officer of Customs under the Customs Consolidation Act, 1853, or any other Act now in force or hereafter to be passed, in relation to the Customs, so far as relates to any seizure, detention, or prosecution which may be made or had under any such Act or Acts, and shall be deemed and considered to be officers of Customs for such purposes; but such officers of the constabulary force shall have, use, and exercise the powers and authorities conferred by this Act so long only as they shall be and continue officers of such constabulary force.
12. This section enables customs powers to the gardaí. Further, section 177 of the Customs Consolidation Act, 1876 provides that:
if any prohibited goods whatsoever shall be imported or brought into any part of [Ireland] ... then ... all such goods shall be forfeited, together with any goods which shall be found packed with or used in concealing them.
Following that, s. 14(1) of the Post Office (Parcels) Act. 1882 provides that:
the provisions of the Acts for the time being in force relating to Customs ... shall apply to goods contained in foreign parcels ...and goods may be examined, seized and forfeited, and the officers examining and seizing them shall be protected.
Issues arising
13. In the light of the foregoing, it is appropriate to set out the relevant issues which remain on this appeal. These are:
(a) Was the parcel containing cocaine under the protection of the Acts of 1908, 1983 and 1993 when it was received into the State and opened in Store Street and subsequently made the subject of a controlled delivery to Robert at the hands of the gardaí?
(b) If the parcel was so protected, was there nonetheless lawful authority to interfere with the parcel within the terms of the forgoing legislation?
(c) If there was not, was there other lawful authority under customs powers and, if so, did such legislative power have to be in the contemplation of those exercising that power or specifically invoked when interfering with the parcel?
(d) Should the interference have been contrary to law, what consequences result as to the admissibility of the evidence?
Application of the legislation
14. Had the parcel delivered to Robert come to Ireland in the ordinary course of the arrangements whereby various countries agree to pass mail on to foreign countries wherein an addressee resides, the prohibition against interference with mail would then be applicable. It has not been argued, and nor could it sensibly be contended, that the prohibitions set out in the Act of 1983 applied to whatever officer of law enforcement working for the Federal Republic of Germany became suspicious of this package and decided to further investigate it, through x-ray, scanning or whatever. In itself, that German action could not have been an interception of mail contrary to Irish law. The laws passed in Ireland do not have extra-territorial effect unless by necessary implication or by express words the extension of the normal rule of the territoriality of national legislation is clearly indicated. Keane J in National Union of Journalists v. Sisk [1992] 2 IR 171 at 179 stated, in relation to a trade union registration dispute where the various bodies were in both Ireland and England:
While no authorities were opened to me either for or against the proposition, it seems to me a sensible approach in construing legislation to assume that, in the absence of any express indication to the contrary, the legislation is not intended to have extra-territorial effect.
On this appeal, multiple authorities were referenced by counsel for the Director of Public Prosecutions in support of the presumption against extra-territoriality. For Robert, however, it was expressly agreed that while there was such a presumption, it was argued that the question did not properly arise. This was urged on the Court in the following manner:
The question is not whether what was done in Germany either by Germans or Irish citizens or both was lawful having regarding to Irish legislation but rather whether what was done in Ireland from the time the item entered the State to the time it was delivered to the address [in Phibsboro] was lawful within the meaning of the laws of the State. In determining this issue, the question of extra-territoriality of the legislation simply does not arise. The interpretation of the terms ‘interception’ and 'postal packet' under our law require to be considered by reference to a factual background whereby the item in question was posted from Brazil to Germany, and intended for onward transmission to Ireland. The item came into Ireland. The question for consideration is whether, when it was within the State, it was a postal packet within the meaning of our law and whether the actions by the authorities amount to interception of same. The interpretation of the term postal packet falls to be determined by reference to well established principles, looking at the ordinary and plain meaning of the term, how it is defined, the context of its usage and the intention of the Oireachtas in the relevant legislative scheme.
15. This parcel could not be protected by the terms of the Act of 1993. As and from the point it left Brazil to the point where it reached Germany, it may well be that under the relevant local legislation it had some form of immunity from scrutiny or could only be looked at or opened by particular law enforcement officers. There is no information in that regard. Taken, as it was, from Germany to Ireland by a law enforcement official from Ireland for the purpose of further examination here, it could not be regarded as coming within the definition of s. 66(1) of the Act of 1983 as it was not then “in the course of post” and was not therefore “immune from examination, detention or seizure except as provided for” by legislation. Further, it was not an offence under s. 84 of the Act of 1983 to open this postal packet, since it was not then covered by the definition in s. 1 of the Act of 1993, referencing s. 89 of the Act of 1908. Rather than setting out an ultra-wide definition that anything “transmissible by post” fits within the definition of a “postal packet”, the clear intention of the Oireachtas in 1983 and 1993 was to reference that definition to the wrongs which were capable of being committed when something has actually been posted. In that regard, s. 74 of the Act of 1908, in providing for proof that “any article is in the course of transmission by post” would have been adding an unnecessary simplification of the burden cast upon the prosecution had it not also been the task of anyone pursuing a criminal prosecution to demonstrate that an item had been received into the postal system. That proof is common to all such prosecutions for interference with mail under the legislation.
16. That being the case, it was not unlawful to open the packet or to continue its delivery outside the postal system. It is clear that no authorisation had been given by the relevant Minister under s. 2 of the Act of 1993. Such an authorisation was not, however, required. The reference in s. 84(2)(c) of the Act of 1983 to interference being legally possible “under other lawful authority” would, in any event, be fulfilled in the powers granted generally to gardaí under s. 5 of the Act of 1857 enabling the application in the future of s. 14(1) of the Act of 1882 relating to customs powers.
17. At trial, it appears that the point raised by counsel for Robert, and which was ultimately successful in securing his acquittal on the counts to which he had not pleaded guilty, came about in consequence of inspiration during the course of the hearing. Inspector Carolan in testimony had justified his actions in opening the parcel in Store Street by reference to the non-application of the legislation protecting postal packets from interference. Beyond that, it is impossible to know what was in his mind. Counsel for the Director of Public Prosecutions, however, specifically referenced powers under the Customs Consolidation Act 1876 in submissions to the trial judge and the application of powers of customs officers to members of the gardaí. It was submitted, however, by counsel for Robert, that was a necessary part of the proof by the prosecution of the lawfulness of their actions for Inspector Carolan to show that he, in effect, addressed the particular power exercised in opening the packet. That would have been done, according to this submission, mentally or orally at the time and by subsequently justifying it in evidence at the trial. This, according to counsel for the Director of Public Prosecutions, made “no sense”.
18. A series of cases, which trace their origin to the speech of Viscount Simon in Christie v Leachinsky [1947] AC 573 at page 587, support the proposition that in arresting someone, in other words requiring a person to submit to lawful authority in circumstances which would otherwise amount to the tort of false imprisonment, the person arresting must in general terms inform the person to be arrested of their authority under law. This is done where the person is told “the true ground of arrest”. This principle was approved by O'Higgins CJ in The People (DPP) v Walsh [1980] IR 294 at 306-308, with which Kenny J agreed, and again in many cases of which DPP v Mooney [1992] 1 IR 548 is but an instance. As was stated in Christie v Leachinsky, “technical or precise language need not be used.” Instead, the requirement:
… is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitle to his freedom and is only require to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
19. From the circumstances, a person may already know the reason for their arrest or may make it practically impossible to either be told or to rationally respond through “immediate counter-attack or by running away.” This principle of informing a person made subject to legal power of compulsion through arrest has been applied outside arrest powers. In Director of Public Prosecutions (Garda Ryan) v. Mulligan [2009] 1 IR 794 it was held that a garda making a legal requirement for a name and address under public order legislation was required to state in a general way that this request was being made pursuant to statute; the recitation of any precise name or sections or subsections was not required. Where legislation was notorious, such a requirement was not necessary; as in a garda stopping a car and seeking proof of insurance; Director of Public Prosecutions (Garda Lanigan and Garda Shortt) v Freeman [2010] IEHC 379. That power, in itself, is effectively the interrogation of a piece of paper that the law obliges each driver to have on a vehicle windscreen. Everyone knows that vehicles in public places must be insured, people after all do a written as well as a practical exam before being allowed to drive unaccompanied. Where a warrant has been issued to arrest someone, normally the arresting officer will tell the arrestee the reason for the arrest, which would ordinarily reference the existence of the warrant; R v Kulynycz [1971] 1 QB 367. That fact that a warrant has been issued does not, however, nullify existing powers of arrest, if same exist. The document should be capable of being produced at the request of the arrestee, but sometimes the existence of the warrant is circulated within an area and a garda will not necessarily have it on him or her when effecting the arrest. Hence, where there is such a request it should be produced as soon as practicable thereafter; Codd v Cabe (1875-1876) L R 1 Ex Div and see Criminal Justice Act 1997 s.5 and Criminal Justice Act 1984 s.13 and also see Walsh - Criminal Procedure (Dublin, 2002) 4.112. A warrant for entry into premises is, of its nature, a document that should be shown to the occupants or minders of the premises on seeking entry. If there is no one there, it can be inspected after the search on request. In Simple Imports Limited v Revenue Commissioners [2000] 2 IR 243, warrants were issued under the Customs Laws Consolidation Act 1876 and the Customs And Excise (Miscellaneous Provisions) Act 1988 to search premises for pornography. The warrant failed to show on its face, however, a necessary precondition for the exercise of the relevant statutory jurisdiction. Keane J, at p. 255 stated:
I am satisfied that the submission on behalf of the respondents that, in a case where the warrant itself states that it is being issued by the district judge on a basis which is not justified by the statute creating the power, the invalidity of the warrant can be cured by evidence that there was in fact before the district judge evidence which entitled him to issue the warrant within the terms of the statute is not well founded. That proposition seems to me contrary to principle and unsupported by authority. Given the necessarily draconian nature of the powers conferred by statute, a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.
20. What all of the relevant cases, of which the above are but a sample, have in common is the requirement pursuant to law to submit to arrest, to seizure or to search, made by an authorised person against a human subject who is legally obliged to submit and who is so informed. Hence, the person required to submit is told in general terms of the relevant power to be exercised. Thus, it is common to hear during criminal trials that a garda told someone that they were being arrested for a particular offence on a particular day or that they were being required to give some particular of themselves pursuant to statute or that a party of gardaí arrived at a premises or a dwelling, produced a warrant, and effected entry. While none of these requirements are complex, they are all rooted in the concept that a citizen within a state founded upon Christian and democratic principles does not have to submit to arbitrary power, but is entitled to basic information as to the source upon which such compulsion is being exercised.
21. These principles cannot have any possible application to the exercise of legal authority over inanimate objects. It is a matter of objective fact as to whether a power to inspect, to sample, or to otherwise deal with, an object existed or not as a matter of law. Here, such a power did exist pursuant to customs powers applied by legislation to gardaí. While no evidence on that was given to the court of trial, what matters is that the power existed and was applied in the manner contemplated by the statute. This does not require some kind of internal mental reference in order to be valid. The peculiar circumstances in which the relevant application was made militated against Judge O’Donnell being satisfied that the relevant section was in the mind of Inspector Carolan. He was never asked that question because that issue was not a live issue at the trial while he was giving evidence. Whether the particular power was in his mind or not, what matters is that the power existed and was applied in the manner contemplated by the statute. Counsel for the prosecution made that point clearly to Judge O’Donnell in submissions.
22. It therefore follows that there was no unlawful interference with the postal packet in question. Therefore no question of illegality or the balancing of the gravity of that illegality as against the seriousness of the charge, or other relevant factors, arose with a view to the trial judge exercising any discretion to exclude evidence. The evidence was admissible.
Result
23. In the result, the 2nd question asked by Judge O’Donnell does not arise for decision. The 1st question should be answered on the basis that there was no unlawful interception of the postal packet containing the hollowed out book with cocaine inside it.
