THE APPLICATION of a Dublin man (27) who took a case to the European Court of Human Rights accusing gardaí of obtaining evidence illegally has been rejected.
Robert Mills of Lissadell Green, Drimnagh was arrested after supplying drugs to undercover gardaí on a number of occasions.
On 28 March 2013, two officers of the National Drug Unit who were working undercover randomly approached two young men and asked if there was “any weed around”.
One of the young men made a call and a few minutes later a car arrived in which Mills was a passenger.
He sold one of the officers a €25 sachet of cannabis. At the officer’s request, Mills gave him a mobile phone number for future contact.
The officer called him the next day and they met shortly afterwards and Mills sold him another sachet of the drug. He advised the officer to buy a larger quantity the next time.
The third and final purchase took place a few days later, following the same pattern and involving €50 worth of the drug. Mills was arrested and charged under the Misuse of Drugs Act.
Appeals
Mills counsel applied to have the police evidence excluded on the ground that the applicant had been entrapped by the undercover officers.
However, following a legal argument on the admissibility of the evidence, the trial judge refused to exclude it. Mills then changed his plea to guilty and he was sentenced to two years’ imprisonment on each count, suspended for two years.
In December 2015, the Court of Appeal dismissed his appeal which noted that Ireland was the only country in 22 Member States that lacked a formal regulatory basis for the use of undercover police.
While the Court of Appeal considered that to be “unsatisfactory”, it concluded that the trial judge had been correct in deciding to admit the evidence.
It also noted that the defendant had been provided with no more than an unexceptional opportunity to commit a crime and it appeared that he would have behaved in the same way if the same opportunity had been offered by anyone else and he had not been incited, persuaded or pressured into committing a crime.
In June 2016, the Supreme Court refused leave to appeal.
Fair trial
The application was then lodged with the European Court of Human Rights on 18 August 2016. Mills said the refusal of the Irish courts to exclude the evidence against him meant that he had not received a fair trial.
While the court agreed with the previous courts’ criticism of the lack of a formal system for undercover operations – it did not consider that this meant the undercover operation had been carried out without safeguards.
The court noted that the initial approach had been made by a third party approached at random and the fact that that person was able to immediately contact Mills suggested that he was known in the area to be involved in drug dealing.
The Irish courts had considered that he would have behaved in the same way had he been offered the same opportunity to sell drugs by anyone else. The European Court of Human Rights agreed and concluded that the role of the gardaí in the case had been essentially passive and that their conduct had not crossed the line to become entrapment or incitement to commit an offence.
The European Court of Human Rights rejected the application and declared it inadmissible.
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