DPP v Wiggins

• Jurisdiction: Ireland
• Judge: Mahon J.,Hogan J.
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IECA 178
• Date: 31 July 2015
• Court: Court of Appeal (Ireland)
• Docket Number: [312/10] Bill No. [CY 22/09]

[2015] IECA 178

THE COURT OF APPEAL

The President

Hogan J.

Mahon J.

[312/10]

Bill No. [CY 22/09]

Between

The People (Director of Public Prosecutions)

Respondent

and

Christopher Wiggins

Appellant

Crime & sentencing – Appeal after pleading guilty – Drug trafficking – Attempt to import large amount of cocaine – Appeal against conviction – United Nations Convention on Law of the Sea – S 15A Misuse of Drugs Act 1977

Facts: The appellant had been convicted of drug trafficking offences alongside two others in relation to the seizure of a vessel containing 1504 kg of cocaine. He now sought to appeal his convictions on the basis the seizure was unlawful and/or s 15A of the Misuse of Drugs Act 1977 could not be invoked by the State.

Held by Ryan P, the other Justices concurring, that the appellant could not seek to appeal his conviction where he had pled guilty having had the benefit of leading counsel. He had not shown that he had been misled or misinformed as the state of the law in such a manner that would justify him to resile from his earlier plea. The appeal would be dismissed on that preliminary issue.

JUDGMENT of the Court delivered by the President on 31st July 2015

Background

1 The appellant was one of three persons who were sailing the yacht “Dances with Waves” on 5th November 2008, when it was boarded by Naval officers 150 nautical miles south west of Mizen Head outside of Irish territorial waters. At the time, the vessel contained cocaine weighing 1,504 kg. and valued at between €100 and €400 million.

2 The suspect vessel was identified as a result of confidential information supplied to the Irish Joint Taskforce on Drugs (‘JTF’) by the Maritime Analysis and Operations Centre for Narcotics (MAOCN) in Lisbon, Portugal.

3 On 5th November 2008, the Naval Service vessel “L.E. Niamh” observed the vessel and confirmed its identity as the “Dances with Waves”. A boarding party from the “L.E. Niamh” boarded “Dances with Waves” pursuant to Article 110 of the United Nations Convention of the Law of the Sea (UNCLOS) to ascertain its nationality. The occupants of the vessel were David Mufford, Philip Doo and Christopher Wiggins.

4 Philip Doo confirmed that the registration of the vessel had lapsed, but that he intended to re-register it at Liverpool.

5 A communication between the “L.E. Niamh” and the JTF, and between the JTF and UK Customs clarified that the vessel had been de-registered by its previous UK owner in June 2008, and that it was not registered in any Convention state. Accordingly, on 6th November 2008, a decision was made to detain the vessel under s. 35 of the Criminal Justice Act 1994 (‘the 1994 Act’).

6 The appellant and his two companions, Phillip Doo and David Mufford, were arrested under s. 34 of the 1994 Act, for using a ship for drug trafficking and subsequently detained under s. 2 of the Criminal Justice (Drug Trafficking) Act 1996. All three cooperated fully with the Gardaí and admitted their part in the drug trafficking operation.

7 Each of the three pleaded guilty to an offence under s.15A of the Misuse of Drugs Act 1977, as amended, and were sentenced at Cork Circuit Criminal Court on 8th May 2009 to 10 years' imprisonment each. They were also charged with offences pursuant to s.15 of the Misuse of Drugs Act 1977, as amended, and offences pursuant to s. 34 of the 1994 Act, of using a ship for drug trafficking. A nolle prosequi was entered in respect of the latter two counts post-sentence. As will be seen, the central issue which arises on which this appeal is whether this Court should allow Mr. Wiggins to withdraw his plea of guilty and to permit him now to appeal against this conviction.

8 The appellant was originally refused leave to appeal the severity of the sentence on 8th May 2009, by the sentencing judge. The appellant and Mr. Doo subsequently made attempts to appeal their convictions, and it appears that the Court of Criminal Appeal informed them that they had to apply to the Court that sentenced them for leave to appeal. Accordingly, at a hearing on 26th April 2013, the sentencing judge was asked to grant leave to appeal the convictions of Mr. Wiggins and Mr. Doo. The prosecution's view was that it was a matter for the trial judge and did not oppose the application and the judge extended time granted leave as sought.

9 The appeals of Mr. Wiggins and Mr. Doo were listed for hearing before this Court on 11th May 2015, but Mr. Doo withdrew his appeal on the day of hearing. Mr. Wiggins proceeded with his appeal and represented himself.

Grounds of Appeal

10 The appellant argues two grounds as to why his convictions are unsafe:-

1. The Boarding of “Dances with Waves” pursuant to Article 110 of the United Nations Convention on Law of the Sea (UNCLOS) was unlawful.

Article 86 of UNCLOS states, inter alia:

‘The provisions of [Part VII] apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State.’

This provision appears to extend to areas not included in

(i) the territorial sea;

(ii) the internal waters of a State and

(iii) the exclusive economic zone.

Article 110 UNCLOS is contained within Part VII of the said Convention and thus is encompassed by Article 86. Furthermore, Article 57, UNCLOS states:

‘The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.’

11 Accordingly, as the evidence discloses that the “Dances with Waves” vessel was boarded some 150 nautical miles from Mizen Head pursuant to Article 110 UNICLOS, it is submitted that the “Dances with Waves” vessel was boarded within the State's exclusive economic zone. If this argument were correct it would mean that the Naval Service could not properly have invoked Article 110 UNICLOS and, by extension, the boarding purported to be effected thereunder was unlawful.

2. A s. 15A Misuse of Drugs Act 1977 charge could not have been levied on the facts

Section 33 of the 1994 Act (as amended) reads:

‘(1) A person is guilty of a drug trafficking offence if the person does, on an Irish ship, a ship registered in a Convention state or a ship not registered in any country or territory, any act which, if done in the State, would constitute such an offence.’

12. However, the term ‘drug trafficking offence’ for the purposes of s. 33 is defined at s. 3 of the 1994 Act as, inter alia:

‘…

(b) an offence under section 15 of that Act of possession of a controlled drug for unlawful sale or supply,

…

(f) an offence under section 33 or 34 of this Act.’

13 The appellant argues that that, whereas the said provision purports to authorise the State to invoke s. 15 simpliciter, it cannot and does not engage the separate and distinct provision of s. 15A. It cannot reasonably be said that s. 15A is subsumed within s. 15.

Preliminary Point

14 There is, however, a preliminary issue: whether it is open to Mr. Wiggins, in all the circumstances of this case, to pursue an appeal against conviction his plea of guilty notwithstanding. The Director of Public Prosecutions challenged the appeal by Mr. Wiggins in circumstances where he had pleaded guilty and had had legal advice. Paras. 9 to 11 of the DPP's submissions are as follows:

‘9. The respondent objects and submits that the appellant is not entitled to change his plea having admitted the offence charged in lieu of which the prosecution entered a nolle prosequi in respect of the remaining counts on indictment.

10. The submissions hereafter are without prejudice to the respondent's primary objection as to the appellant's lack of entitlement to change his plea at this remove.

11. It is assumed, therefore, for the purpose of argument, that the appellant is submitting that he was improperly advised to plead guilty and is seeking to overturn his plea of guilty on that basis.’

15 Accordingly the first question this Court must investigate before embarking on an examination of the substantive grounds of appeal is the question of whether a guilty plea to the charge given some six years ago bars the appellant from now bringing an appeal against his conviction. The question of whether an appeal is barred is often intertwined with the substantive grounds of appeal. Why and in what circumstances was the guilty plea entered?

16 The appellant, by his own submission, pleaded guilty to a charge contrary to s. 15A of the Misuse of Drugs Act 1977 on foot of allegedly incomplete legal advices supplied by his previous legal teams. In this regard, the Court is invited to be cognizant of the fact that this matter was the first ever prosecution undertaken on foot of the enabling legislation which underpins the case and involves complex and unusual legal issues concerning aspects of both maritime and European law. It was submitted that the appellant ventilated his concerns and discontent at the earliest possible juncture by communicating same to his previous legal team and, later, to the State Solicitor for Cork.

17 It was submitted that, as the legal advice supplied to the appellant was incomplete and inaccurate, the said advice cannot reasonably be described as proper. Thus although the decision to plead guilty was that of the appellant alone, the decision to plead did not have its genesis in proper legal advice. Accordingly, the appellant's plea of guilty cannot reasonably be described as an uninformed plea, the existence of which renders his conviction unsafe.

18 Mr. Wiggins has nor sworn an affidavit or put before the Court any documentary material to substantiate his submissions.

The Law on the Preliminary Issue

19 Section 32 of the Courts of Justice Act, 1924 , as amended by s. 3(6) of the Criminal Procedure Act 1993 provided:

‘Leave to appeal shall be granted by the Court of Criminal...