DPP -v- Glen Geasley
Court of Criminal Appeal
Judgment was delivered on March 24th 2009 by Mr Justice Fennelly, sitting with Mr Justice Budd and Mr Justice MacMenamin
Judgment
A Circuit Court judge was not bound to follow a judgment of the Court of Criminal Appeal on the interception of a phone call, which had been founded upon the interpretation of a statutory provision which was no longer in force when the judgment was delivered.
Background
Leave to appeal against conviction for conspiracy to possess firearms or ammunition was sought by Glen Geasley. He had been convicted in February 2008 of the offence after he entered a guilty plea. Virtually all the evidence resulted from an undercover operation on the part of the Garda Siochana, with the assistance of an English law-enforcement agency, the Serious Organised Crime Agency (SOCA).
Two SOCA agents, called “John” and “Raj”, were the central witnesses. They had posed as arms dealers and had met the accused, showing him pictures of arms. They supplied him with mobile phones, and a significant part of the incriminating evidence consisted of conversations between him and the agents on the phones.
The grounds of appeal were that, by admitting the evidence of these phone conversations, the trial judge refused to follow the decision of the court in DPP -v- Dillon [2002], claiming that the case was decided per incuriam (without reference to a previous judgment). Lawyers for the appellant said that without the phone evidence there could have been no trial. As a result of the admission of the phone evidence the appellant had no option other than to plead guilty. A trial without the application of the doctrine of stare decisis (following precedent) was not a trial in accordance with the Constitution, and a conviction arising from it was not sound, even where the accused pleaded guilty.
Decision
Mr Justice Fennelly said that the 1924 Courts of Justice Act was broad enough to encompass a right to appeal, notwithstanding a guilty plea, in an appropriate case. This appeal was based on the claim that the trial judge had made an error in law in admitting evidence of the telephone conversations between himself and the SOCA agents.
The judgment in Dillon was based on an interpretation of a statutory provision that had been effectively repealed and replaced at the time that decision was pronounced.
In the Dillon judgment a Garda inspector came into the possession of a mobile phone which he believed was likely to be used to arrange drug deals. He answered a number of calls, including one from a man who asked for Nicky. The inspector said Nicky was not available, but that he was “Mick”, assuming the persona of someone who was privy to a previous arrangement with Nicky, and proceeded to discuss drug-dealing, thereby incriminating the caller.
In the Court of Criminal Appeal Mr Justice Hardiman considered whether the inspector was an “interceptor” under the Press and Telecommunications Service Act 1983, whether the interception was unlawful and whether the evidence was therefore admissible.
After considering the 1983 Act, which refers to “agreement” on the part of the persons both transmitting and receiving the message, and the Kennedy judgment, where the tapping of a journalist’s phone was found to be unconstitutional, Mr Justice Hardiman found that the interception had not been mandated by law and the evidence was inadmissible.
In fact, at the time Dillon was decided, this sub-section of the 1983 Act no longer existed in its original form, having been replaced by a provision that allowed for interception where either the person making or receiving the call consented.
“Interception” also now means interception by a third party, Mr Justice Fennelly said.
The appellant had argued that the Circuit Court was bound to follow the judgment in Dillon, despite the fact that it had interpreted the statute as if it had never been amended.
Mr Justice Fennelly said that the court was entirely satisfied that the actions of “John” and “Raj” were not contrary to the Act of 1983 as amended. They consented to the receipt and recording of the conversations.
He then turned to the question as to whether the court was bound to follow the ruling in Dillon, in circumstances where it was entirely though mistakenly based on the interpretation of a provision that was no longer in force.
The doctrine of precedent plays a central role in our law, he said, assisting the common law to achieve uniformity, consistency, predictability and certainty. He quoted a House of Lords decision, cited in the Supreme Court case Attorney General -v- Ryan’s Car Hire [1965], which stated that a case decided in reliance on a statutory provision which was subsequently discovered to have been repealed would not be binding because it was founded on a mistake of fact.
Where a court has reached a decision without taking account of a relevant argument, an important judicial precedent or a relevant statutory provision, its decision may be disapproved in a later case by a court of concurrent jurisdiction, he said.
This case presented an extreme example of a court deciding a matter without making reference to the legal provision that was actually in force. Faced with this unusual situation, the trial judge in this case decided he was not bound by it.
“This court is satisfied that the learned judge was correct in his ruling,” Mr Justice Fennelly said. “In the opinion of this court, the learned trial judge was not only entitled but bound to apply the statutory provision and to give effect to the law as passed by the Oireachtas.” Leave to appeal was therefore refused.
He added that the facts of this case were also different from Dillon, in that the applicant had met “John” and “Raj” and they were not purporting to be someone else. There was no intrinsic objection to the concealment of their identity by law enforcement agents engaged in the investigation of serious crime.
Padraig Dwyer SC and Patrick ONeill BL, instructed by Madden and Finucane Solicitors Belfast, for the applicant; Tom OConnell SC and Marjorie Farrelly SC, instructed by the Chief Prosecution Solicitor, for the DPP