A garda drugs and cash bust from Ballyfermot
A judge at the Court of Appeal has described as "unsatisfactory" the failure of An Garda Siochana to put in place a proper protocol for undercover drug operations.
In a judgment on an appeal in the case of a young man convicted of selling bags of cannabis to undercover gardai, Justice Alan Mahon said Ireland should look to the British system to see how such operations are conducted there.
He said: "In Ireland, the existence of a formal system for the authorisation and supervision of this type of undercover operation does not appear to exist. Such operations appear to be undertaken with a degree of informality which might reasonably be described as unsatisfactory."
Justice Mahon dismissed the claim that the garda operation constituted a breach of the accused person's rights under Article 6 of the European Convention on Human Rights. However, he added that there needs to be a "greater degree of formality and record keeping than currently appears to be the case."
He said a Code of Practice "possibly based on the UK Code of Practice" should be established. He further called for dedicated recording of all details to help with court proceedings arising from undercover operations.
The comments were made in a ruling on a case taken by Robert Mills (25), of Lissadel Green, Drimnagh, Dublin 12. Mr Mills pleaded guilty to two charges of possession of a controlled drug with intent to supply in December 2015 after the judge at his trial ruled the garda evidence of buying the drugs from him as admissible.
The appeal claimed that the judge erred in that ruling.
The evidence to the court, given by Detective Garda Brian Roberts, was that gardai were concerned about drug dealing in Drimnagh and wanted to assess what was happening. On March 28, 2013 Garda Roberts said one of the members went to the area, approached two males and said: "any weed around?"
One of them, a 16-year-old, said: "hang on, I'll bell a fella there for you."
Less than 15 minutes later a car pulled up and the garda bought a "25 bag of weed" and got the phone number of the seller, who was Mr Mills. Gardai purchased a second 25-bag the following day and a 50-bag a few days after that from the same person.
The appeal stated that the trial judge should not have deemed that evidence admissible because gardai were "initiating or instigating the commission of a criminal offence," adding that they did so without sufficient independent authorisation.
Justice Mahon dismissed the appeal saying that the operation was sanctioned by a garda commissioner and that the gardai had taken steps to avoid entrapment or enticement to commit a crime.
"The appellant was provided with no more than an unexceptional opportunity to commit a crime," he said. "An opportunity which he freely took advantage of in circumstances where it appears that he would have behaved in the same way if the same opportunity had been offered by anyone else."