The Supreme Court holds interception of cocaine in post not illegal
The Supreme Court has found that evidence obtained as a result of the interception of a postal package in Germany was admissible in a case against the eventual recipient of the package.
The case concerned 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 gardaí had delivered the parcel into the accused’s hands, as if in the ordinary course of post, and then obtained a search warrant.
On searching the flat, they found the parcel unopened on a shelf, a large slab of cannabis and 6 false driving licences.
All of that evidence was ruled inadmissible by the trial judge, as it was found that no permission to open postal communications had been given. Therefore, the accused was acquitted of all the offences that he had not already pleaded guilty to, which were the possession of cannabis and possession for the purpose of supply.
Following the acquittal, the Director of Public Prosecutions referred a question of law to the Court, asking whether a controlled delivery of a suspected contraband item is an interception for the purposes of the Interception of Postal Packets and Telecommunications Messages (Regulations) Act 1993 where the item is intercepted and removed from the postal system by foreign authorities before it reaches this jurisdiction and/or, law enforcement officials 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.
The DPP also asked whether, in cases where authorisation was required but not obtained, the evidence was obtained in breach of the constitutional rights of an accused mandating the exclusion of the evidence, or obtained illegally so as to confer a discretion on the trial judge to admit same.
The Court identified the legal framework in force at the time of the prosecution as being the Postal and Telecommunications Services Act 1983, with s66 stating that postal packets and mail bags in course of post shall be immune from examination, detention or seizure, with s84 defining the criminal offence.
However, it was then noted that under the Interception of Postal Packets and Telecommunications Messages (Regulations) Act 1993, investigating authorities could lawfully interfere with the transmission of mail if authorisation was given by a Minister.
The Court considered the key issues to be whether the parcel fell under legislative protection when it was received in the state and opened.
If it was protected, whether there was lawful authority to interfere with it under the legislation.
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?
Should the interference have been contrary to law, what consequences result as to the admissibility of the evidence?
It was found that had the parcel delivered to the accused 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.
However, in itself, the 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.
As the parcel had been taken from Germany to Ireland by a law enforcement official from Ireland for the purpose of further examination, 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.
That being the case, the Court found that it was not unlawful to open the packet or to continue its delivery outside the postal system. While it was clear that no authorisation had been given by the relevant Minister, such an authorisation was not required.
The Court concluded that:
“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.”
The second question by the DPP therefore did not arise for decision, while the 1st question could be answered on the basis that there was no unlawful interception of the postal packet containing the hollowed out book with cocaine inside it.