Court of Criminal Appeal dismisses appeal regarding unlawful detention during customs baggage inspection under Finance Act 1971.

COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Herbert J.

[C.C.A. No. 183 of 2007]

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

OLAITAN ILORI

APPLICANT

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 31st day of October, 2008

On 4th July, 2007 the applicant was convicted on twelve counts of illegal trafficking of immigrants into the State contrary to s.2(1) of the Illegal Immigrants

(Trafficking) Act, 2000.

Section 2(1) of the Act provides:-

“A person who organises or knowingly facilitates the entry into the State of a person whom he or she knows or has reasonable cause to

believe to be an illegal immigrant or a person who intends to seek asylum shall be guilty of an offence.”

By s.1(1) of the Act of 2000 an “illegal immigrant” is defined as “a non-national who enters or seeks to enter or has entered the State unlawfully.”

Each count related to one of fourteen Mauritian nationals who sought leave to enter the State at Dublin Airport on 27th October, 2004. The fourteen

Mauritian nationals consisted of twelve adults and two children. Acquittals were directed by the trial judge in respect of the two counts relating to the

children.

The evidence in the case was that the group of Mauritians, who had travelled from Mauritius to Ireland via Paris, paid substantial sums of money to a

company Micro-Data Info. Co. Ltd (MDI) in Mauritius on the basis that they would be provided with documentation to facilitate their entry into Ireland and,

following their arrival and entry into Ireland would in addition receive Irish work permits. A number of the Mauritians gave evidence that the applicant, who is

Nigerian but who has Irish nationality and offices in Dublin, held himself out as an expert in immigration law and immigration matters generally in this

jurisdiction. The applicant came to Mauritius some days prior to the group’s departure and detailed his plans to them for their entry into Ireland at a meeting

convened in the premises of MDI for this purpose. As part of an elaborate scheme each member of the group was provided with certain documentation. The

documentation included a letter from a residential hostel in Dublin confirming a booking at that location and a letter purporting to be from a company in

Ireland called E-IKRAX, a company associated with the applicant, which promised that work permits would be issued to the Mauritians within a week. A

further letter was provided from MDI purporting to confirm that each person had work qualifications of one sort or another.

This letter from E-IKRAX was a complete work of fiction. There was never at any time any specific job or work offer available to this group or to any one or

more of them from any body, company or employer in Ireland. There was evidence that the same had been typed and prepared by the applicant’s secretary

in his Parnell Street offices from a manuscript provided by the applicant.

The applicant accompanied the Mauritians on their flights to Paris and Dublin. Various members of the group gave evidence at trial that the applicant

advised them to fill out their landing cards on the basis that the purpose of their visit to Ireland was “tourism”. Significantly, the applicant took back from

each of the Mauritians their said E-IKRAX letter when they arrived in Paris. He offered no explanation for doing so, but the clear effect of this action was to

sever any ostensible link between the fourteen Mauritians and Mr. Ilori at the time when they arrived at Dublin Airport and presented at Immigration Control.

On arrival at Dublin Airport, the applicant did not remain with the group but passed separately through passport control. He was, however, stopped at the

customs checkpoint where his briefcase was found to contain documentation linking him to the fourteen Mauritians. These documents included nine

receipts relating to five members of the group in respect of monies paid over by them in Mauritius for work visas in Ireland. The applicant was arrested

shortly afterwards in circumstances to which I will later refer and brought to Santry Garda Station.

In the meantime the fourteen Mauritians had been refused entry at Immigration Control as illegal immigrants and were deported from Ireland the following

day.

Evidence was tendered of interviews conducted by the Gardai with the applicant in Santry Garda Station in which various admissions were made by the

applicant. Searches undertaken by the Gardai in both the offices operated by the applicant and at his home turned up abundant further documentary

evidence linking him to the scheme to organise and facilitate the entry of the said Mauritian nationals into the State.

The Court would wish at the outset to indicate its view that the offence under s.2(1) of the Act of 2000 is complete when the evidence establishes beyond

reasonable doubt that the accused person “organised or knowingly facilitated” the entry into the State of a person or persons whom he knows or has

reasonable grounds to believe to be illegal immigrants. In the view of the Court it is not necessary for the prosecution to establish that there has been entry

into the State in any sense which implies that it was necessary to demonstrate that the Mauritians had cleared Immigration Control and been granted

permission to land. The essence of the offence lies in “organising” or “facilitating” the physical entry into the State of persons known or reasonably believed

to be illegal immigrants. For the purpose of an offence under s.2 (1) of the Illegal Immigrants (Trafficking) Act, 2000, “entry into the State” means entering

the national territory by crossing the outer limit of the national frontiers. It does not refer only to a person who has passed through immigration control at

approved air or sea ports or land frontier posts. Such a restricted interpretation would defeat the clear objectives of the legislature as expressed in the Act of

2000 and in the Immigration Act, 2004, and would run entirely counter to the definition of “illegal immigrant” contained in s.1 (1) of the Act of 2000.

That the applicant was heavily involved in both organising and facilitating the arrangements whereby the Mauritians actually landed in a physical sense in

this jurisdiction was supported by an abundance of evidence from both Irish and Mauritian witnesses in a trial which lasted some ten days.

The Court rejects as verging on the absurd the submission that the Mauritians in this case should be regarded as “accomplices of the applicant”. These

unfortunate individuals were persuaded to part with very significant sums of money in Mauritius to become eligible to participate in this elaborate scheme.

They were victims in every sense of the word of both the applicant and those responsible for directing the operations of MDI in Mauritius. Further, any

suggestion that the applicant acted otherwise than for gain was shown to be untrue because a number of forms headed “Equity Office Immigration

Consultants, 91, Parnell Street, Dublin” and stated to be “Terms of Payment Consideration” were found in the possession of the applicant. By these forms

of agreement each client bound himself to pay the sum of 2000 euro by four monthly payments of 500 euro to that company (c.c. Mr Doger Rose) “for my

work permit application” when he or she started to work in Ireland. Further evidence at trial clearly established that the applicant was to receive a portion of

such further payments as they fell due over a period of time. In the view of the Court there was overwhelming evidence implicating the applicant at every

stage of this scheme.

One point raised however by Ms. Aileen Donnelly, Senior Counsel for the applicant, requires more elaborate consideration. During the course of the trial

there was a lengthy voir dire hearing in which a challenge was raised to the admissibility of all evidence gathered by the prosecution which resulted from the

search of the accused at Dublin Airport by Customs officials there and during the course of the applicant’s subsequent detention at Santry Garda Station.

The first issue relates to the alleged detention of the accused at Dublin Airport between 12.15 and 1.50 p.m. on the date of arrival. The accused was

stopped by Mark Newman, an officer of Customs & Excise, for the purpose of carrying out a search of his luggage pursuant to s.29 of the Finance Act,

1971 as inserted by s.19 of the Customs & Excise (Miscellaneous Provisions) Act, 1988. Mr. Newman stopped the accused at the Green Channel at

Dublin Airport and invited him to go to a room close to the Green Channel for the purpose of carrying out that search. It should be stressed that this was out

of courtesy for the privacy of Mr. Ilori as otherwise the search process would have taken place in full view of travellers from multiple other flights. Mr.

Newman searched the accused’s briefcase and found the receipts for payments made by the Mauritians concealed in a book. He thereupon contacted the

Garda National Immigration Bureau at the airport and Garda John McCormack from the Bureau who later arrived at the room at approximately 1.10 p.m.

Garda McCormack took the book containing the receipts and left, returning at approximately 1.40 p.m. The accused was then arrested at 1.50 p.m.

It was submitted on behalf of the applicant that he was being detained by Mr. Newman to facilitate Garda McCormack carrying out an investigation into a

suspected offence contrary to s.2 of the Act of 2000. Ms. Donnelly submitted that a detention for the purpose of investigation is prohibited, citing the

following passage from Dunne v. Clinton [1930] I.R. 366:-

“The first question that arises is whether this detention is something different from arrest or imprisonment. In law there can be no half-way

house between the liberty of the subject, unfettered by restraint, and an arrest. If a person under suspicion voluntarily agrees to go to a

police station to be questioned, his liberty is not interfered with, as he can change his mind at any time. If, having been examined, he is

asked, and voluntarily agrees, to remain in the barracks until some investigation is made, he is still a free subject, and can leave at any

time. But a practice has grown up of "detention," as distinct from arrest …. As, in my opinion, there could be no such thing as notional

liberty, this so-called detention amounts to arrest, and the suspect has in law been arrested and in custody during the period of his

detention.”

Ms. Donnelly further relied on decisions in DPP v. Michael Coffey [1987] I.R.L.M. 727 and The People (DPP) v. Conroy [1986] I.R. 460 as further support for

the same principle, the latter case in particular emphasising that the onus lies on the State to prove a person is not detained and that the fact that a person

had not asked to leave was not a determining factor in adjudicating on whether they were in fact detained.

In ruling on this application, the learned trial judge stated:-

“Now, I believe Garda McCormack when he stated that if he had got an appropriate explanation from the accused, he wouldn’t have arrested

him. But obviously, it could have been a doubt in his own mind, he probably had in his own mind, “it will be unlikely that Mr. Ilori will satisfy

me”, but he had an open mind at that stage. So I will take it as a matter of law from the facts disclosed that the arrest took place at a later

time, I think it is 1.50, if I am not mistaken. And I will also as a matter of law take it that the officer Mr. Newman didn’t detain him as such.

He was doing his duty in inspecting and examining, I think “examination” is the word used in the Act. Now, obviously I don’t know what would

have happened if Mr. Ilori had said I am going now. I can’t answer that question but I am satisfied there was no unlawful detention in this case

…”.

Ms. Donnelly argued that s.29 of the Finance Act 1971 provides no power to detain for the purpose of a further and separate investigation and that therefore

between 12.15 and the accused’s arrest at 1.50 she submitted that the accused was in unlawful custody. She accordingly relied upon this contention to

argue that Garda McCormack arrested the accused during a period of unlawful detention and that subsequent searches and interview notes were thereby

rendered inadmissible on the basis that the applicant was being held in unlawful and unconstitutional custody.

DECISION

Section 29(2) of the Finance Act, 1971 as inserted by s.19 of the Customs & Excise (Miscellaneous Provisions) Act, 1988 provides as follows:-

“A person entering or leaving the State shall answer such questions as may be put to him by any officer of Customs and Excise with respect

to his baggage and any thing included therein or brought with him, and shall, if required by the officer, produce that baggage and any such

thing (meaning “any thing included in his baggage or brought with him which on importation is subject to any prohibition or restriction or to any

duty or tax”) for examination.”

Mr. Newman gave evidence that in the course of his inspection he located a book in a briefcase which the applicant was carrying as hand luggage and

which contained receipts corresponding to the names of the Mauritians who had been stopped at a different location in the airport. He formed the view, as

indeed he was entitled to do, that the items discovered would have been of interest to the Garda National Immigration Bureau and contacted the Bureau for

this reason. Mr. Newman gave evidence that when he discovered the contents of the book he placed them to one side and continued to further examine the

contents of the briefcase. When Detective McCormack left with the documentation, Mr. Newman continued to search the other luggage which the applicant

had with him.

It was suggested to Mr. Newman in cross-examination that Mr. Ilori was being kept in the interview room for the purpose of facilitating the ongoing

investigation by the Bureau. He accepted that Detective McCormack went away with the documents discovered in the book at 1.10 p.m., and that he

returned at 1.40 p.m., and said that while Detective McCormack was away, he continued to search the applicant’s other luggage.

In ruling on the submission made by Ms. Donnelly that the prosecution had failed to discharge the onus of proving that Mr. Ilori was not unlawfully detained

by Mr. Newman, the learned trial judge found that Mr Newman was exercising his statutory right to examine the applicant’s luggage and was not unlawfully

detaining Mr. Ilori. Nothing was put before this Court which would suggest that the trial judge in ruling as he did acted according to incorrect principles.

Having carefully considered all the evidence the Court is satisfied that Mr. Newman was not unlawfully detaining Mr. Ilori in the customs room or “playing for

time” in carrying out a baggage inspection, but rather that he was continuing to perform the duties which he was authorised by statute to perform at all

material times.

The Court is satisfied that this ground of appeal must fail along with the other grounds of appeal argued in this case.

The Court will accordingly dismiss the appeal herein.