Surveillance - Forming the basis for reasonable suspicion.

victim.purple

Hello,
I'm new to this boards thing so I'd just like to make a couple of things clear before I go ahead and ask my question so I don't get kicked out (read the sticky- kind of scary).
I am a student working on an assignment for one of my subjects. I am not a professional or looking for legal advice, I'm merely looking for the opinion of people who have more experience and knowledge than I do. Phew...
Anyway, what I wanted to ask was does information gathered through the use of high powered listening devices, although inadmissible as evidence in court (as per Kahn v UK and Armstrong v UK), serve as an adequate basis for the formation of reasonable suspicion required for arrest and search WITHOUT a warrant under section 6 of the Criminal Law Act 1997?
If this is not the case is the arrest constitutional, or in accordance with the European Convention of Human Rights?
Your opinions would be much appreciated.Thank you.
V.P

pirelli

In my opinion. If it is inadmissible in court then you could not seek a warrant in court using this device as the reason for suspicion. It appears that there should be more rigid and transparent procedures in place so that more accountable
methods are used in getting warrants.


Fact of Law: Gardai can not arrest you for one matter just so they can question you about another matter. These laws are quite rigid and strict.

I do not see why they can mislead or put on a show in some court room somewhere and hood wink judges to get warrants.

The warrant system needs cleaning up.

victim.purple

I think I haven't made myself understood.
For example, you're a member of the Gardai and are conducting surveillance on someone who you suspect of dealing drugs. One day you're sitting in your squad car outside the house, eating a roll from spar and drinking tea. Through the high powered microphone you're using you hear the suspect talking to another person in the house about selling the "Stuff". They come out and you see him and the other person loading brown packages into the back of the car. You decide that if you don't apprehend them now they'll offload the drugs before you can get your hands on a warrant, and you'll have nothing, so you get out and approach him to arrest him under the Criminal Law act 1997- ie. an arrestable offence without a warrant. Is the reasonable suspicion necessary for the arrest under that statute valid if it has been formed from a breach of the suspects right to privacy under the European Convention of Human Rights.

Quaver

It may be that seeing suspicious packages would be enough reason for an arrest, it would be hard to argue otherwise.

For the Gardaí to use microphones/phone tapping etc as surveillance, they have to have the permission of the Minister for Justice. There is a fair bit of law/case law that you can read on this in any Criminal Law book.

Also, the Convention is not yet binding part of Irish law, so it may have little effect.

McCrack

The situation you describe wouldnt be a problem for the Gardai. They would exercise powers under the Misuse of Drugs Act 1977 S23, search the car and person, find the lolly and arrest. The 1997 Act would not come into it.

victim.purple

Thanks for that, I appreciate the reason for using the Misuse of Drugs Act but I have a problem regarding the limited powers of search and seizure under that act. The difficulty is in the second part of this scenario where the suspect runs into the house away from the garda officer. If I cite the Criminal Law Act the officer can pursue him into the house and carry out the arrest under section 6 (2)of that act, knowing its exceptions to inviolability of dwelling i.e. the officer has witnessed him enter the dwelling, and then proceeds to search the house which he is entitled to do under section 6 (2)a of that act. i.e.- without warrant or permission of the occupier. A quantity of drugs are found in the house but it turns out the packages in the car contain Christmas decorations (lecturer's got a fertile imagination) and the suspect is charged under Misuse of Drugs Act i.e. possession with intent to sell.
What is bothering me in particular is if information gathered during the surveillance ( which is thus far completely unregulated by legislation, as far as I can see the Interception of Postal Packages and Telecommunication Messages Act 2003 does not specifically refer to listening devices. I haven't found another that does, and all that is mentioned in the books (emphasis on books.. a lot of books) is mechanically produced tape recordings) is adequate grounds for reasonable suspicion required in the 1997 act to carry out an arrest and search of one's dwelling? Or can the reason for suspicion be very flimsy?
I could be very wrong on this but doesn't the European Convention on Human Rights Act 2001 ensure the effective application in Ireland of the convention itself and if the HC or SC declare the use of listening devices incompatible under s5, doesn't that leave it open for the defendant to appeal to the Court of Human rights who have ruled in two major UK cases (Kahn and Armstrong) in favour of individual whose rights were infringed under Article 8 and Article 13(I think, where there was a lack of statute setting out procedures for remedy if infringement occurs ) although this was for the inclusion of the surveillance audiotape as evidence itself. The new Surveillance Bill will remedy this as the Regulation of Investigatory Powers Act did in the UK but its not passed yet so it's all still a bit messy.
I am quite worried I'm not making any sense at all!
Basically I want to explore whether the evidence found within the house would be declared inadmissible because of the questionable reasonable suspicion before trying to include it under extraordinary and excusing circumstances, if any exist. I'm thinking imminent destruction/disposal(sale) or something equally weak.
What do you think? Would you go about this differently? Who do you think has the stronger case, defence or prosecution?
Thanks,
V.P

happyhappy

my spin on it from a practical point of view.

follow suspect into house as you have outlined under criminal law act.

arrest him/her and any others in the house under misuse of drugs act or criminal law act on suspicion of sale & supply or a drug trafficking offence and bring them to garda station where they are detained.
then get warrant from district court or peace commissioner to fully search house

if necessary a superintendant can declare the house a crime scene, which it is under the relevant section (section 5 i think but i'm guessing) of the criminal justice act 2007 as an arrestable offence has been committed there.