POSTAL PACKETS
Bar Council CPD Seminar
Garnet Orange BL
15 April 2013
___________________________________________________
Criminal law practitioners regularly encounter situations where a package has been
intercepted and used as part of a controlled delivery operation. The Postal and
Telecommunications Services Act 1983 originally regulated the transmission of postal
packets until it was substantially replaced by the Communications Regulation (Postal
Services) Act, 2011. The Postal Packets and Telecommunications Messages (Regulations)
Act, 1993 is also relevant.
An item that is sent through the postal system is a “postal packet” and is defined as
an item addressed in the final form in which it is to be carried by a postal service
provider and includes a letter, parcel, packet or any other article transmissible by
post1.
The old regime
S. 66(1) of the Act of 1983 states
Postal packets and mail bags in course of post shall be immune from examination,
detention or seizure except as provided under this Act or any other enactment.2
S. 84(1) of the same Act provides that
A person who—
(a) opens or attempts to open a postal packet addressed to another person or delays
or detains any such postal packet or does anything to prevent its due delivery or
authorises, suffers or permits another person (who is not the person to whom the
postal packet is addressed) to do so, or
(b) discloses the existence or contents of any such postal packet, or
(c) uses for any purpose any information obtained from any such postal packet, or
(d) tampers with any such postal packet,
without the agreement of the person to whom the postal packet is addressed shall be
guilty of an offence.3
S. 110 of the Act empower the Minister to make directions to the postal service regarding
the operation of the company and the delivery of the post.
Under the Act of 1993 an interception of post is defined as being
(a) an act—
(i) that consists of the opening or attempted opening of a postal packet
addressed to any person or the delaying or detaining of any such postal packet
1
Communications Regulation (Postal Services) Act, 2011 s. 6(1). The original definition is in s. 10 Post Office
Act 1875. Also, see s. 87(1) Post Office Act 1953 (UK).
2
Provision repealed by s. 4(1) of the Act of 2011 which came into force on the 2nd August, 2011.
3
This provision was also repealed by s. 4(1)
or the doing of anything to prevent its due delivery or the authorising, suffering
or permitting of another person (who is not the person to whom the postal
packet is addressed) to do so, and
(ii) that, if done otherwise than in pursuance of a direction under section 110 of
the Act of 1983, constitutes an offence under section 53 of the Communications
Regulation (Postal Services) Act 2011,
Section 2 of the Act authorises an interception of postal packets pursuant to an
authorisation given by the Minister for Justice and Equality for “the purpose of criminal
investigation or in the interests of the State”.4 The authorisation must be in the form of a
warrant but, in cases of exceptional urgency, may be given orally and subsequently in
written form.5 This Act contemplates an ongoing interception of all the post sent to a
particular individual or address and for a substantial period of time.6 The Act provides for a
complaints procedure and the operation of the Act is reviewed by a High Court judge on an
annual basis.
There is a further statutory provision in s. 14 of the Post Office (Parcels) Act, 1882 which
provides that the legislation “for the time being in force” shall apply to “goods contained in
foreign parcels” and that the goods may be examined and seized by customs officers.7 The
language of the section is somewhat opaque but it appears to create a power to examine
and seize unlawful items contained in parcels in a manner that is consistent with the
enactment creating the prohibition.
The new legislation
The Communications Regulation (Postal Services) Act, 2011 now regulates the interception
of postal packets.8 The Act has designated An Post as being the “universal postal service
provider” for a period of twelve years from enactment.9
S. 46(1) of the Act repeats the provisions of s. 66(1) in providing for the inviolability of any
postal packet which is in the course of delivery (“transmission”) in the postal system. In
addition, it is an offence to open, tamper with or to detain a postal packet without legal
authority.10 The Act creates an exception to the general rule protecting these items from
interference. Section 48 of the Act directs the postal service provider shall forward to the
revenue authorities “any goods” that are prohibited or restricted by any enactment.11
Under the current statutory regime it appears that the postal service works are obliged to
transfer to the customs officers any postal packet which may contain any prohibited material
such as controlled drugs. The officers of the Customs and Excise have wide powers to
examine and seize any goods the importation or exportation of which is prohibited.12 The
4
Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 s. 2(1). An
interception of a postal packet is defined in s. 1 and is clearly intended to have a broad application.
5
Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 s. 2(2) and (4).
6
See Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 s. 2(6) and 4.
7
Post Office (Parcels) Act, 1882 s. 14(1). The balance of this Act was repealed by the Postal and
Telecommunications Services Act, 1983.
8
The Act was commenced in its entirety on the 2nd August, 2011.
9
Communications Regulation (Postal Services) Act, 2011 s. 17.
10
Communications Regulation (Postal Services) Act, 2011 s. 53.
11
Communications Regulation (Postal Services) Act, 2011 s. 48(1)(b) and 48(2)(b).
12
Customs and Excise (Miscellaneous Provisions) Act, 1988 s. 7(1) and (2). The Act in s. 1 states that the
gardaí have the same powers as officers of the customs and excise.
combination of these provisions appears to allow for the interception and seizure of any
prohibited goods that are being transmitted either through the postal service or by a
commercial carrier.
Controlled deliveries
The principal area of interest relating to postal packets and other packages for criminal
lawyers is where a package containing drugs is intercepted by the authorities and is then
used in the course of a controlled delivery. Where challenged the prosecution will be
obliged to show that the package and its contents were lawfully examined and seized.
In The People (DPP) v NcEdisannani Swana13 postal service workers had identified a
package as being suspicious and they had brought it to an officer of the Customs and Excise
who was working in the central sorting office in Port Laois. That officer opened the package
and found that it contained controlled drugs. A controlled delivery operation had then been
effected as a consequence of which the accused was charged with possession of controlled
drugs. At the trial the customs officer had relied on the provisions of s. 203 of the Customs
Consolidated Act, 1876 which authorised the stopping and searching of “any cart, waggon,
or other conveyance” where there was a reasonable suspicion that it might contain
smuggled goods. The prosecution also sought to rely on the powers created by s. 14 of the
Post Office (Parcels) Act, 1882 even though the officer had not given evidence of having
invoked this provision. His Honour Judge McCartan held that the relevant legislation was
penal in nature and that it must be strictly construed. He rejected the argument that the
provisions of s. 203 could be applied to a postal packet and that, in the circumstances there
had been a breach of there had been a failure to comply with the Interception of Postal
Packets and Telecommunications Messages (Regulation) Act, 1993.14 The judge exercised
his discretion in favour of excluding the evidence relating to the intercepted postal packet.
Judge McCartan subsequently clarified that his decision in this case was based upon the
evidence of the customs officer concerned (and his insistence that the package was a
“conveyance”) and that he did not intend his decision to suggest that interceptions in
general were unlawful.
In The People (DPP) v Pakule15 the evidence was that a package that was being transported
into the State by an international courier company was brought to the attention of the
officers of the customs and excise operating in Dublin Port. The wrapping on the package
was in poor condition and the accompanying documentation showed that it had been
consigned from South Africa and that it was said to contain ornaments. An x-ray
examination of the package showed that it contained packages and, after the package was
opened, these were found to contain cannabis. A controlled delivery was conducted and the
accused was subsequently charged with possession of the controlled drugs. At trial the
customs again relied on the provisions of s. 203. The defence relied on the Swama decision
and argued that the provisions of the Interception of Postal Packets and
Telecommunications Messages (Regulation) Act, 1993 extended to cover packages that were
being transmitted by courier as well as by the postal service. Her Honour Judge Ryan
rejected this argument and held that the Act created a distinction in favour of postal packets
which did not extend to packages sent by courier and that the items had been lawfully
intercepted.
Another issue that may have to be determined in relation to the interception of a postal
packet is whether there has been any breach of the rights of the accused. It is an offence
13
The People (DPP) v NcEdisannani Swana (Bill No.: DU0210/06) Ex temp. Unreported Circuit Criminal Court
18th October, 2007.
14
The Judge’s ruling that “conveyance” could not be read to include a postal packet was clearly correct having
regard to the construction of s. 203 and also Customs and Excise (Miscellaneous Provisions) Act, 1998 s. 6.
15
The People (DPP) v Pakule (Bill No.: 274/10) ex temp. Unreported Circuit Criminal Court.
under the legislation to unlawfully detain or interfere with a postal packet and the parcel and
its contents may also be protected by a constitutional right of privacy.16 However, the
evidence given in cases of controlled delivery invariably shows that the parcel is sent to a
fictitious addressee but at a genuine address. The person who receives the package may
then be prosecuted for the unlawful possession of the drugs. While the evidence may show
that the gardaí or the customs failed to comply with the legislation relating to the
interception of postal packets (or that there was some other unlawful act relating to its
seizure) this should not necessarily mean that the evidence cannot be admitted against the
accused. In each case the trial judge will be required to consider all of the relevant
evidence and exercise his discretion as to whether or not it should be admitted. If a
constitutional right has been breached the trial judge will have no discretion and must
exclude the evidence (save in very restricted circumstances) but if there is a breach of a
legal right the trial judge may still admit the evidence. 17 If the recipient of the parcel had
no obvious right to receive it then it is hard to see why the evidence should be excluded.
In The People (DPP) v Ameachi Innocent18 the customs had intercepted a parcel that was
addressed to “Mary Butler” at an address in Rathmines which was a building divided into
thirteen self-contained units. The officers of the Customs and Excise did not rely on any
specified power to either intercept, open or seize the package. On examination the parcel
was found to contain cocaine which had been concealed within items of jewellery. The
parcel was transmitted to the gardaí and a controlled delivery operation was put in place.
When the garda arrived at the address (posing as a courier) the accused was on the steps
of the building and he was seen to open the door with a key. In the course of a brief
conversation the accused indicated that he knew Mary Butler and that she was at work but
he would take the parcel for her. The parcel was given to the accused who then signed a
delivery docket in a false name. The accused did not live in the building. The defence
relied on the decision in the Swama case. Judge McCartan held, inter alia, that he did not
accept that there had been an unlawful interception of the parcel but that, if there had
been, the accused knew that the recipient was a fictitious name and that the accused had
no right to the parcel. In the circumstances the Judge ruled that if he was required to do so
he would exercise his discretion in favour of admitting the evidence. The Judge also held
that the chain of evidence only became a relevant issue from the time the accused received
the parcel.
16
This is by extension of the principles in Kennedy v Ireland [1987] IR ; and The People (DPP) v McCann
[1998] 4 IR 397 at p. 408. Also, see Malone v United Kingdom (1985) EHRR 14.
17
See The People (AG) v O'Brien [1965] IR 142; and DPP v McMahon [1986] IR 393 at p. 399 to 402.
18
The People (DPP) v Ameachi Innocent (Bill No.: 1290/11)
TELEPHONES AND MOBILE PHONES
Fixed and mobile phones
Mobile phones may be seized in the same manner as any other item of potential evidence.
As with any other item of evidence the phone may be examined and the contents of the
phone’s memory may be downloaded for evidential and investigative purposes.
Non-content information
The Communications (Retention of Data) Act 2011 regulates the retention and use of
information that has been generated by the various service providers arising from the use of
mobile phones and landlines (“Fixed network telephony).19 The Act does not apply to the
content of the communications.20
It applies to “data” which is electronically and
automatically stored information relating to actual fact that a particular cell registered on a
particular mobile phone mast and engaged in a particular activity (such as the making or
receiving of a call) and the times at which this occurred.
Each mobile phone has its own identifying number (the IEMI number). A mobile phone
becomes operational when a chip containing the user’s subscriber information and phone
number is inserted (the S.I.M. card). This information is the “cell ID” within the meaning of
the Communications (Retention of Data) Act, 2011. The service providers operating in the
State have a network of masts that receive the messages and calls sent by the mobile
phone user and transmit them onwards to the intended receiver. Each time the phone user
sends or receives a text message or phone call the cell ID and the type of communication
are automatically recorded by the service provider. Similar data is generated when a fixed
landline phone is used. This is the type of information that is gathered by the service
provider concerned for billing purposes.
The Act obliges the service providers operating in the State to retain data for two years in
respect of fixed line and mobile phones and one year for internet related traffic.21 The
service provider is directed to take particular measures to ensure the security of the data
and also its destruction after the statutory time period has elapsed unless it is specifically
preserved.22 The nature of the information that the service provider must retain is detailed
in Schedule 2 Part 1 of the Act.
The service provider shall not access the retained data unless he receives a request to do so
from either the person to whom the data relates, a garda not below the rank of chief
superintendent (or a colonel in the defence forces or a principal officer in the Revenue
Commissioners), the Data Protection Commissioner or on foot of a court order.23 The Act
directs the service provider to comply with a request to disclose the relevant data.24 A chief
superintendent may only request disclosure of the information when he is satisfied the data
is required for the prevention or investigation of serious crime, the security of the State or
19
This Act was enacted to give effect to Directive No. 2006/24/EC and repeals the earlier provisions of Part 7 of
the Criminal Justice (Terrorist Offences) Act, 2005.
20
Communications (Retention of Data) Act 2011 s. 2.
21
Communications (Retention of Data) Act 2011 s. 3. The specific information that must be retained is detailed
in Schedule 2 Part 1 of the Act.
22
Communications (Retention of Data) Act 2011 s. 4.
23
Communications (Retention of Data) Act 2011 s. 5.
24
Communications (Retention of Data) Act 2011 s. 7.
the preservation of life.25 The person requesting the data must apply in writing unless the
circumstances are of exceptional urgency.26 The Act also provides for the monitoring of
requests for disclosure of data and for a complaints procedure.
Any information that is obtained under this Act will be admissible in the usual manner and
the relevant documentation may be adduced under the provisions of Part II of the Criminal
Evidence Act, 1992.
25
26
Communications (Retention of Data) Act 2011 s. 6(1).
Communications (Retention of Data) Act 2011 s. 6(4).
Interception of telecommunications (phone tapping)
A constitutional right of privacy exists in respect of communication by telephone (“telephonic
conversations).27 This right must extend to conversations conducted by mobile phone and
will also apply to text messages and data transmitted by the internet. It may be noted that
there is a distinction between the retention and accessing of the type of data that is
regulated in the Communications (Retention of Data) Act, 2011 and phone tapping.
The legislation governing this act of surveillance is the Postal and Telecommunications
Services Act, 1983 and the Interception of Postal Packets and Telecommunications
Messages (Regulation) Act, 1993. The 1983 Act creates a general prohibition on the tapping
(“interception”) of telephone calls (“telecommunication messages”) by making it an offence
to do so.28 The tapping or listening in on a phone call is an “interception” is defined by the
Act of 1993 as
an act(i) that consists of the listening or attempted listening to, or the recorded or
attempted recording, by any means, in the course of its transmission, of a
telecommunications message, other than such listening or recording, or such an
attempt, where either the person on whose behalf the message is transmitted or
the person intended to receive the message has consented to the listening or
recording, and
(ii) that, if done otherwise than in pursuance of a direction under section 110 of
the Act of 1983, constitutes an offence under section 98 of that Act,
and cognate words shall be construed accordingly.
In s. 98(6) ‘intercept’ means listen to, or record by any means, in the course of its
transmission, a telecommunications message but does not include such listening or
recording where either the person on whose behalf the message is transmitted or the
person intended to receive the message has consented to the listening or recording, and
cognate words shall be construed accordingly.29
Section 2 of the Interception of Postal Packets and Telecommunications Messages
(Regulations) Act, 1993 authorises an interception of telecommunications messages
pursuant to an authorisation given by the Minister for Justice and Equality for “the purpose
of criminal investigation or in the interests of the State”.30 The authorisation must be in the
form of a warrant but, in cases of exceptional urgency, may be given orally and
subsequently in written form.31 The legislation authorises the interception of
telecommunications “sent to or from a particular telecommunications address”.32 The
legislation was clearly intended to facilitate the tapping of landlines but may still be
considered to refer to mobile phones if each subscriber’s phone number is considered a
telecommunications address. The Act provides for a complaints procedure and its operation
is reviewed by a High Court judge on an annual basis. The interception of a telephone call,
27
Kennedy v Ireland [1987] IR 587; Norris v AG [1984] IR 36; The People (DPP) v Dillon [2002] 4 IR 501;
Herrity v Associated Newspapers [2008] and The People (DPP) v Geasley [2009] IECCA 22.
28
Postal and Telecommunications Services Act, 1983 s. 98.
29
Postal and Telecommunications Services Act, 1983 s. 98(6) inserted by Interception of Postal Packets and
Telecommunications Messages (Regulations) Act, 1993 s. 13(3).
30
Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 s. 2(1). An
interception of a postal packet is defined in s. 1 and is clearly intended to have a broad application.
31
Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 s. 2(2) and (4).
32
See Interception of Postal Packets and Telecommunications Messages (Regulations) Act, 1993 s. 4(a)(III).
otherwise than in accordance with the provisions of this legislation is an offence and may
also be a tort.
In The People (DPP) v Dillon [2002] 4 IR 501 the gardaí had arrested a suspected drug
dealer as a consequence of which they acquired a mobile phone. The gardaí believed that
the phone was being used to arrange drug dealing. The applicant had phoned the cell and
a meeting had been arranged with a garda who had assumed a false name and pretended
to be a drug dealer. The applicant argued that what had occurred was an illegal
interception of a telecommunication message. The Court of Criminal Appeal was not made
aware that the definition of “interception” s. 98 of the Act of 1983 had been amended by the
Act of 1993 and held that the interception was illegal because the applicant had not agreed
to it (as appeared to be required by s. 98 of the Act of 1983.
In The People (DPP) v Geasley [2009] IECCA 22 the applicant had been convicted on the
basis of evidence gathered by a UK police agency which set up an entrapment operation
relating to the proposed illegal sale of firearms. A substantial portion of the evidence was
gathered by means of recorded phone conversations that took place with the applicant. The
applicant argued on appeal that this evidence should not have been admitted because it
constituted an illegal interception of a telecommunications message. The Court of Criminal
Appeal considered the two Acts and the Dillon decision and held that the agreement of the
applicant was not necessary to render the interception lawful. The Court continued
33. It is not, in any event, a normal or natural use of the expression “intercept” to
apply it in such circumstances. An interception occurs when a third party intervenes
and takes or, in the case of a conversation, listens to something passing between two
other parties. The interceptor is a third party.
36. The Court is quite satisfied that the actions of “John” and “Raj” in listening to and
recording the telephone conversations they had with the applicant were not contrary
to section 98(1) of the Act of 1983. They did not “intercept” those conversations
within the meaning of that term as it is now defined in section 98(6) of the Act as
amended. They consented to the receipt and recording of the conversations.
This decision effectively authorises the use of recorded telephone conversations where the
evidence has been gathered as part of an entrapment procedure.
The powers created by the Criminal Justice (Surveillance) Act, 2009 may not be used to
conduct an operation that would constitute an interception within the meaning of the Act of
1993 (s. 2(3).33
33
In Allsop [2005] EWCA Crim 703 it was held that where a conversation between two people is overheard by
means of a listening device does not constitute a conversation in the course of a transmission.
COMPUTERS
A computer (as with a mobile phone) may be evidence in itself and may be seized by the
gardaí.34 Where a computer has been seized it may then be examined and the contents of
its memory analysed for information that may be used in evidence. This will be of particular
use where the computer itself was the “the instrument by which the crime was
committed”.35 There does not appear to be any legislative provision for the interception of
internet communications.
The Communications (Retention of Data) Act 2011 empowers the gardaí to obtain certain
information (“data”) relating to the use of the internet. The Act requires the service
provider to retain data relevant to the use of the internet for communications including
phone conversations made using the internet.36 The content of any communication made
using the internet is specifically excluded from the operation of the Act.37 In reality this is
an attempt to secure as much information as possible to identify the person using the
internet to communicate and the times and locations concerned.
The Act obliges the service providers operating in the State to retain data for one year for
internet related traffic.38 The service provider is directed to take particular measures to
ensure the security of the data and also its destruction after the statutory time period has
elapsed unless it is specifically preserved.39 The nature of the information that the service
provider must retain is detailed in Schedule 2 Part 2 of the Act.
The service provider shall not access the retained data unless he receives a request to do so
from either the person to whom the data relates, a garda not below the rank of chief
superintendent (or a colonel in the defence forces or a principal officer in the Revenue
Commissioners), the Data Protection Commissioner or on foot of a court order.40 The Act
directs the service provider to comply with a request to disclose the relevant data.41 A chief
superintendent may only request disclosure of the information when he is satisfied the data
is required for the prevention or investigation of serious crime, the security of the State or
the preservation of life.42 The person requesting the data must apply in writing unless the
circumstances are of exceptional urgency.43 The Act also provides for the monitoring of
requests for disclosure of data and for a complaints procedure.
The obvious weakness of information of this type is that it may not, by itself, prove that a
particular “user” was the person who actually engaged in the relevant communications.
Further evidence may be necessary to prove that the suspect was the relevant user of the
internet service. In these circumstances the information gathered under this Act may be
more useful in terms of investigative purposes than for evidential purposes.
34
Subject to the second principle enunciated in Ghani v Jones [1970] 1 QB 693 at p. 708.
For example, a prosecution under the Child Trafficking and Pornography Act, 1998.
36
Communications (Retention of Data) Act 2011 s. 3. The specific information that must be retained is detailed
in Schedule 2 Part 1 of the Act.
37
Communications (Retention of Data) Act 2011 s. 2.
38
Communications (Retention of Data) Act 2011 s. 3. The specific information that must be retained is detailed
in Schedule 2 Part 1 of the Act.
39
Communications (Retention of Data) Act 2011 s. 4.
40
Communications (Retention of Data) Act 2011 s. 5.
41
Communications (Retention of Data) Act 2011 s. 7.
42
Communications (Retention of Data) Act 2011 s. 6(1).
43
Communications (Retention of Data) Act 2011 s. 6(4).
35