DPP v Dillon
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hardiman |
| Judgment Date | 20 December 2002 |
| Neutral Citation | 2002 WJSC-CCA 1993 |
| Court | Court of Criminal Appeal |
| Docket Number | [C.C.A. No.77 of 1998] |
| Date | 20 December 2002 |
2002 WJSC-CCA 1993
THE COURT OF CRIMINAL APPEAL
Hardiman J.
O Caoimh J.
Finnegan J.
Citations:
POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98
POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(5)
LAWLOR V FLOOD 1999 3 IR 107
INTERCEPTION OF POSTAL PACKETS & TELECOMMUNICATIONSS MESSAGES (REGULATIONS) ACT 1993 S2(2)
INTERCEPTION OF POSTAL PACKETS & TELECOMMUNICATIONSS MESSAGES (REGULATIONS) ACT 1993 S2(1)
INTERCEPTION OF POSTAL PACKETS & TELECOMMUNICATIONSS MESSAGES (REGULATIONS) ACT 1993 S2(3)
KENNEDY & ARNOLD V IRELAND 1987 IR 553
MALONE V UK 1984 7 EHRR 14
NORRIS V AG 1984 IR36
LAKE V SIMMONS 1927 AC 487
ANSON PRINCIPLES OF THE ENGLISH LAW OF CONTRACT AND OF AGENCY IN ITS RELATION TO CONTRACT 25ED
SOWER V POTTER 1940 1 KB 271
POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(2)
AG V O'BRIEN 1965 1 IR 142
DPP V KENNY 1990 2 IR 110
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(2)
Synopsis:
EVIDENCE
Privacy
Telecommunications - Constitutional law - Contract law - Criminal law - Statutory interpretation - Interception of mobile telephone call - Whether interception of phonecall amounted to invasion of rights - Whether evidence of phonecall inadmissible - Postal and Telecommunications Services Act, 1983 (77/1998 - CCA - 20/12/02)
DPP v Dillon - [2002] 4 IR 501 - [2003] 1 ILRM 531
Facts: The applicant had been convicted on foot of evidence obtained by the Garda Síochána from a telephone conversation on a mobile phone. The Gardaí had obtained a mobile phone from a suspect and had received information from a telephone call made to the mobile phone. The applicant appealed the conviction on the basis that the evidence in question had been improperly obtained as the interception was in breach of the Postal and Telecommunications Services Act, 1983. It was submitted that the interception was in violation of the applicant's constitutional rights.
Held by the Court of Criminal Appeal (Hardiman J delivering judgment; Ó Caoimh J and Finnegan J agreeing) in allowing the appeal and quashing the conviction. There had been no agreement by the applicant to the listening by the Gardaí of the telephone conversation and this had amounted to an "interception". An interception which was unlawful could not become lawful on the basis of what was heard during it. The evidence of the phonecall was therefore admitted in error and the conviction must be quashed.
20th day of December, 2002 by Mr. Justice Hardiman.
This appeal raises a number of difficult questions. They centre on evidence which was admitted by the learned trial judge (His Honour Judge O'Leary) of a conversation on a mobile telephone, the identification of the phone from which the relevant call was made, and matters following from the foregoing.
The first question that arises relates to the mobile telephone conversation. It raises the following issues:-
(a) Whether the action of Detective Inspector Anthony Quilter in conducting and listening to a conversation on a confiscated phone, using a false name, amounted to an "interception" within the meaning of Section 98 of the Postal and Telecommunications Services Act, 1983.
(b) If so, whether such interception was unlawful and/or amounted to an invasion of constitutional rights of the other party to the conversation,
(c) If it did amount to such a breach what the consequences of that are for the admissibility of the evidence.
The facts relevant to this issue appear as follows:-
Detective Inspector Quilter came into possession of a mobile phone which he had reason to believe was likely to be used for the purpose of arranging a drugs transaction. The phone had been obtained by him after the Gardaí stopped two men, Nicholas Power and Michael Carey who were travelling in a motor car and whom they suspected of drugs activities.
The Detective Inspector answered a number of calls on this phone. The evidence in relation to the relevant call, on the issue as to whether its contents ought to be admitted, is contained in Book B, Q.193 ff of the transcript. About forty-five minutes after the seizure he received a call from a man with a Limerick accent who asked for Nicky. The Inspector said that Nicky was not available just at the time and he asked who the caller was. The caller said he was Joe. The caller asked who the Inspector was and the latter said that he was Mick. That is not his real name. The caller then asked had Nicky the gear ready for him and the Inspector asked "How much again was he looking for?" On receiving an answer to this the Inspector asked if the caller had the "grade", meaning cash, and there was some discussion about that. The Inspector then told the caller that he was tied up and would not be able to meet him at the place Nicky had arranged and made an alternative arrangement.
In cross examination, from page 59 onwards, the Inspector said that in saying that he was Mick he was not pretending to be Michael Carey:-
"It could have been any name. Mick would have been the first thing I thought of". It could easily have been Paddy or Joe".
He later said:-
"It could have been any name I would have used. He just asked who I was and I said I was Mick".
When it was put to him that he was pretending to be someone other than who he was he said:-
"I didn't reveal my true identity" and "I used the name Mick. I used a fictitious name."
He also said:-
"I think it was plainly obvious it was an untruth".
In relation to the use of the word "again" by the Inspector in the persona of Mick he said at page 62:-
"I said how much was he looking for again, My Lord, Yes. That would have been a natural method of conversation I would have. I don't think there is any significance in the word "again". It was more spontaneous than calculated".
It was put to him that the word "again" was a reference to a prior conversation and suggested that he was not quite sure how much that the caller had ordered in the first place and he said:-
"......This conversation was spontaneous. There was no person identified to me prior to this conversation as a Joe. The word "again", My Lord, is just there".
As part of the learned trial judge's ruling on this matter, he specifically found that in adopting the name "Mick"the Inspector was not pretending to be Michael Carey. This Court regards itself as bound by that finding in that it was fundamentally one of credibility. The learned trial judge heard the Inspector closely cross examined to the effect that he was indeed assuming the persona of Michael Carey. The finding as to the Inspector's credibility on this point was uniquely one for the learned trial judge. Equally however there is no doubt that (as the Inspector repeatedly said) that he assumed a false name for the purpose of the conversation and did not, of course, identify himself as a member of the Garda Síochána. It also seems inescapable that the Inspector assumed the persona of someone who was privy to a previous arrangement with "Nicky".
The first legal issue is whether the Inspector's action in listening to what was said by "Joe" was an "interception" within the meaning of Section 98 of the Postal and Telecommunications Services Act, 1983. Having regard to the terms of subsection (5) of that section, this issue turns on whether the Inspector had "the agreement of the person on whose behalf that message is transmitted by the Company and of the person intended by him to receive that message."
The learned trial judge in fact gave two decisions on this matter, on the first and the second days of the trial. The result was the same in each case. On the first day (page 78) he held that:-
".......There was no evidential basis on which I could reach the conclusion that the person who transmitted that message did not, at the time he transmitted it, intend it to be received by a person named Mick whom he didn't know".
On the second day (Book C page 90) the learned trial judge held:-
"I am satisfied that when he answered the telephone the Inspector truthfully said that Nicky was not there when he asked to identify himself if he used the name Mick. I am satisfied, in the absence of evidence to the contrary, that the person on the other end of the phone voluntarily carried on a conversation with a person by the name of Mick without knowledge as to who that person was. I am satisfied this conversation between Joe, who was alleged to be the accused, and the Inspector using the pseudonym of Mick, was carried on with the full agreement of both parties and is therefore not an interception within the meaning of the 1983 Act."
In Lawlor v. Flood [1999] 3 IR 107, the learned former Chief Justice, Mr. Justice Hamilton, re-stated the established approach to the construction of statutory provisions. In particular, he emphasised that in interpreting a particular section or subsection, it must be construed in the light of the entire of the section or Act of which it forms part and also of the "legislative framework" of which it forms part. This framework may include other statutes, whether passed before or after the provision being construed. In this case, the whole of Section 98 of the 1983 Act is relevant as is The Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993.
Section 98 of the Postal and Telecommunications Services Act, 1983creates an offence committed by any person who:-
a "(a) Intercepts or attempts to intercept or
(b) Authorises suffers or permits another person to intercept or
(c) Does anything that will enable him or...
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