ECtHR: Irish man’s police entrapment complaint declared inadmissible

ECtHR: Irish man’s police entrapment complaint declared inadmissible

An Irish man who claimed his conviction for selling drugs was unfair as it was based on evidence obtained by police entrapment has had his application unanimously declared inadmissible by the European Court of Human Rights, which concluded that the role of the police in the case had been essentially passive and that their conduct had not crossed the line to become entrapment or incitement to commit an offence, though it noted Ireland requires a formal procedure in domestic law regulating undercover operations by the police.

The applicant, Robert Mills was born in 1990 and lives in Dublin. In June 2013 Mr Mills was arrested following a drugs test purchase exercise conducted in Dublin to identify individuals engaged in the sale and supply of illicit drugs.

His counsel applied to have the police evidence excluded on the ground that the applicant had been entrapped by the undercover officers. Following a legal argument on the admissibility of the evidence heard over two days in the absence of the jury (voir dire) during which the police witnesses were cross-examined, the trial judge refused to exclude the evidence. Mr Mills then changed his plea to guilty and he was sentenced to two years’ imprisonment on each count, suspended for two years.

The Court of Appeal dismissed his appeal in December 2015. It made extensive reference to the relevant case-law of the European Court of Human Rights and noted that Ireland was the only country in a comparative survey covering 22 member states that lacked a formal regulatory basis for the use of undercover police. While it considered that situation to be unsatisfactory, the Court of Appeal nevertheless concluded that there had been no infringement of article 6 of the European Convention on Human Rights in the circumstances of the case and that the trial judge had been correct in deciding to admit the evidence. The Supreme Court refused leave to appeal in June 2016.

The ECtHR observed that – as already noted by the domestic courts in Mr Mills’ case – there had been no formal system for authorising and supervising undercover police operations in Ireland at the time. The court agreed with the domestic courts’ criticism of the lack of such a formal procedure. The line between legitimate infiltration by an undercover agent and instigation of a crime was more likely to be crossed if no clear and foreseeable procedure for authorising such operations was in place.

However, the court did not consider that the lack of such a formal procedure meant that the undercover operation in the instant case had been carried out without safeguards. In particular, it had taken place within the framework of a broader operation authorised at the highest level of the police; the officers participating in the exercise had been specifically instructed, including on the issue of entrapment; and the police witnesses had been cross-examined in detail in court by the applicant’s counsel about the conduct of the test purchase.

The court noted that the initial approach had been an indirect one. The officers’ interest in purchasing a small volume of drugs had been transmitted to him by a third party approached at random.

The fact that that person was able to immediately contact Mr Mills suggested that he was known in the area to be involved in drug dealing. Nothing in the interaction between him and the officers indicated that there had been any pressure exerted on him by the police.

In particular, he had arrived on the scene within minutes, ready to make a small sale to a person completely unknown to him; and the other two sales were made with the same speed and ease as the first one. The domestic courts had considered that he would have behaved in the same way had he been offered the same opportunity to sell drugs by anyone else.

The court agreed and concluded that the role of the police in the case had been essentially passive and that their conduct had not crossed the line to become entrapment or incitement to commit an offence.

Furthermore, the court considered that the course of the domestic proceedings had demonstrated that, had Mr Mills succeeded in demonstrating that he had been entrapped, the evidence against him would have been deemed inadmissible. The procedure followed by the trial judge had met the relevant criteria deriving from the court’s case-law, having been adversarial, thorough and comprehensive.

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