Court of Criminal Appeal dismisses appeal against conviction by a guilty plea defendant regarding trial judge rulings.

THE COURT OF CRIMINAL APPEAL

[Record No: CCA 94/2011]

Clarke J.

Herbert J.

de Valera J.

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Jan Stuurman

Defendant/Applicant

Judgment of the Court delivered by Mr. Justice Clarke on the 6th June, 2013.

1. Introduction

1.1 The appellant (“Mr. Stuurman”) was charged with possession of 58 half kilo packages of diamorphine valued at €5,678,360. His

trial before the Dublin Circuit Court commenced before His Honour Judge Hunt and a jury on the 9th March, 2011. In the course of the

first two days of the trial, a number of rulings were made by Judge Hunt relevant to the admissibility of evidence. Those rulings were

adverse to Mr. Stuurman. Thereafter, Mr. Stuurman changed his plea to one of guilty and received a sentence of 10 years

imprisonment with the final three years and four months suspended on terms.

1.2 Notwithstanding his plea of guilty, Mr. Stuurman has appealed his conviction to this Court. He has not, however, appealed against

the severity of the sentence. The primary basis of Mr. Stuurman’s appeal is that it is said that two of the rulings made by His Honour

Judge Hunt in the course of trial were incorrect and that it was, in substance, only as a result of those adverse rulings that a plea of

guilty was entered. The rulings in question concerned issues relating to the circumstances leading up to the questioning of Mr.

Stuurman by gárdaí, in the course of which questioning it is said that he made admissions of involvement in the importation of the

drugs concerned. Those rulings had the potential to have an effect on the admissibility of the evidence of the alleged admissions.

1.3 It was accepted on behalf of the prosecutor/respondent (“the D.P.P.”) that there can be circumstances in which a person who

has pleaded guilty can nonetheless appeal against conviction. However, there was a dispute between counsel as to the precise scope

of the entitlement to appeal notwithstanding a plea of guilty and as to the application of whatever might be the proper test in that

regard to the facts of this case. The first question with which the court was faced, therefore, was as to whether it is open to Mr.

Stuurman, in all the circumstances of this case, to pursue an appeal against conviction notwithstanding his plea of guilty. The two

other issues which arise, in the event that it is open to Mr. Stuurman to appeal, are the questions concerning the respective rulings

given by His Honour Judge Hunt in the course of the trial. The Court will start by briefly outlining some of the procedural history of this

appeal which has a bearing on understanding the way in which this Court has approached the issues which it has to decide.

2. Procedural History

2.1 The appeal first came before a differently constituted court. On that occasion, the court directed that both parties file additional

written submissions addressing the question of the jurisdiction to entertain an appeal notwithstanding a plea of guilty. In the course

of the submissions thus filed, both sides made reference to the decision of this Court delivered by Fennelly J. in DPP v Geasley [2009]

IECCA 22. At para. 14 of his judgment, and referring to s. 32 of the Courts of Justice Act 1924, as amended by s. 3(6) of the Criminal

Procedure Act 1993, Fennelly J. held “that this section is broad enough to encompass a right to appeal, or apply for leave to appeal,

notwithstanding a guilty plea, in an appropriate case.” It will be necessary to return to Geasley in due course.

2.2 However, on any view, it is clear from Geasley that one of the matters which the court has to take into account in deciding

whether it is appropriate to allow an appeal to be advanced in any particular case, notwithstanding a plea of guilty, is the nature of

the grounds of appeal advanced. It follows that there is an interaction between the question of whether an appeal can be pursued at

all and the grounds of appeal which are sought to be advanced if an appeal is permitted. For that reason, this court decided to hear

both sets of issues together so that it could, in assessing whether this was an appropriate case in which an appeal could be pursued

notwithstanding a plea of guilty, have a full understanding of the specific grounds of appeal which were sought to be advanced on Mr.

Stuurman’s behalf.

2.3 For like reasons the Court, therefore, proposes to next set out the two substantive grounds of appeal sought to be advanced on

behalf of Mr. Stuurman before turning to the question of whether this case falls within the principles identified in Geasley.

3. The Substantive Grounds of Appeal

3.1 As noted earlier, two grounds of appeal were advanced. Both concerned the sequence of events which led up to the questioning

of Mr. Stuurman, during the course of which admissions of involvement in the importation of drugs were said to have been made. The

first point derived from the decision of this Court in The People (DPP) v Boylan [1991] 1 I.R. 477. As will be explored later in this

judgment, there are some differences of detail (although counsel disputed the extent to which any such differences might be

material) between the legislation with which this Court was concerned in Boylan and the legislation relevant to Mr. Stuurman’s case.

However, there are undoubtedly broad similarities in that both relevant provisions confer a power on, respectively, An Gárda Síochána

and Customs and Excise to search vehicles and, in that context, to make a requirement of a person appearing to be in charge of the

vehicle in question to refrain from doing certain things but more importantly, for the purposes of the issues which arise in this case,

“to be in or on or to accompany” the relevant vehicle for as long as the relevant requirement remains in force. A failure to comply

with a relevant requirement can lead to arrest for that reason alone and also constitutes a standalone offence. It is clear, therefore,

that a statutory requirement of that type does not amount to an arrest as such although it does have an effect on limiting the

freedom of movement of a person of whom the requirement is made for such a person is, in substance, required to remain with the

vehicle either in the place where the requirement is made or in some other place to which it is taken for search as long as the

requirement remains in place.

3.2 On the facts of Boylan, this Court was satisfied that, in substance, the accused had been arrested rather than simply required to

comply with a statutory direction of the type just described, and that his arrest was and remained unlawful, so that admissions made

during that unlawful period of custody should not be admitted in evidence.

3.3 At his trial, counsel for Mr. Stuurman argued that the facts of this case bore a striking resemblance to those of Boylan and urged

that a like result should ensue. Counsel for the D.P.P. drew attention to the fact that there were some differences between the

wording of the statute under which the direction was given to Mr. Stuurman (being the Customs and Excise (Miscellaneous Provisions)

Act 1988 ("the 1988 Act") and in particular s. 2 thereof) which applies to Officers of Customs and Excise as opposed to the provisions

of the Misuse of Drugs Act 1977 (as amended by s. 12 of the Misuse of Drugs Act 1984) which apply to members of An Gárda

Síochána, and which fell to be considered in Boylan. There was a debate between counsel both at the trial and at the appeal as to

whether any differences in the wording of the respective statutes were material to any of the issues which the trial court and this

Court had to decide.

3.4 In addition, at the trial, counsel for the D.P.P. suggested that there were significant differences on the facts between Boylan and

this case, such that the same conclusion should not follow. Ultimately, His Honour Judge Hunt was persuaded by the arguments put

forward on behalf of the D.P.P. and ruled accordingly. It is argued on this appeal on behalf of Mr. Stuurman that in so ruling the trial

judge was incorrect.

3.5 The second point that was urged at the trial derived from DPP v Tyndall [2005] 1 I.R. 593. On the D.P.P.'s case at trial, Mr.

Stuurman was ultimately arrested after drugs were found in a second lorry which had been stopped at the same time as the lorry

being driven by Mr. Stuurman and where there were, it was said, reasons for suspecting that both lorries were acting in unison.

3.6 In Tyndall, the Supreme Court allowed the appeal and quashed the conviction and sentence of the accused on the basis that

there was no evidence that the arresting Gárda in that case actually had a suspicion sufficient to meet the statutory requirement

that such a suspicion existed as a pre-condition to the exercise of the power of arrest which arose on the facts of that case. It is of

some importance to emphasise that Tyndall was not in anyway concerned with the reasonableness or otherwise of any such

suspicion, the basis for the suspicion in question or a challenge, on the facts, as to whether the arresting officer actually had the

suspicion of which evidence was given. Rather Tyndall turned on the narrow question of whether there was any evidence at all of the

arresting Gárda actually having a relevant suspicion.

3.7 At his trial, counsel for Mr. Stuurman urged that, as in Tyndall, there was no evidence of the relevant officer having a suspicion

such as would have permitted the lawful arrest of Mr. Stuurman. Counsel for the D.P.P. argued that there was sufficient evidence. His

Honour Judge Hunt held that the evidence was “just about sufficient”. It is said that the trial judge erred in coming to that

conclusion.

3.8 Those two points, hereinafter described as the Boylan point and the Tyndall point, formed the basis of what were said to be

erroneous rulings on the part of the trial judge. It was suggested that had either of those rulings gone in the other direction, the

evidence of the alleged admission of involvement with the drugs in question would have been excluded and that there would, in those

circumstances, have been little or no evidence remaining against Mr. Stuurman. On that basis, it was argued that Mr. Stuurman was

left with little option but to plead guilty in the light of those rulings and that, therefore, the plea of guilty should not be taken to be a

barrier to an appeal against the rulings which were said to have caused the plea of guilty in the first place.

3.9 Having outlined the grounds of appeal sought to be argued, the Court now proposes to return to Geasley.

4. Geasley

4.1 As noted earlier this Court, in Geasley, held that there could be appropriate cases where a plea of guilty would not be a barrier to

an appeal, or an application for leave to appeal, against conviction. So much is not in dispute. However, it is important to analyse

Geasley in some detail to ascertain the guidance which it gives as to the circumstances in which it might be appropriate for this Court

to entertain an appeal notwithstanding a plea of guilty. Fennelly J. noted that, prior to Geasley, there had been two cases in which

this Court had allowed an appeal against conviction to be entertained notwithstanding a plea of guilty those being DPP v B. [2002] 2

I.R. 246 and DPP v Lynch (Unreported, Court of Criminal Appeal, 27th July 1999). However, both of those cases concerned advice

given to the respective accused from their lawyers, which was said to have influenced the relevant plea. As Fennelly J. noted at

para. 16 of his judgment in Geasley, the case then before this Court was quite different. I will shortly turn to that case.

4.2 Fennelly J. went on to quote from the 2003 edition of Archbold (paragraph 7-46b), which is in the following terms:-

“By far the most common ground of appeal, where there has been a plea of guilty, is that as a result of an erroneous

ruling on a point of law by the trial judge, the appellant pleaded guilty or changed his plea to guilty. To succeed,

however, it must be shown that the erroneous ruling left the defendant with no legal escape from a verdict of guilty;

and a conviction would not normally be regarded as unsafe where the defendant was influenced to change his plea

because he recognised that, as a result of a decision to admit certain evidence against him, his case on the facts was

hopeless…”

4.3 Fennelly J. further cited with approval from the judgment of the Court of Appeal in England, delivered by Wolfe LJ in R. v Preston

(1992) 95 Cr. App. R. 355 at 381, in the following terms:-

“It is not any error of law or any irregularity which is sufficient for this purpose. In Hunt (1986) 82 Cr. App. R. 244, 249,

[1986] Q.B. 125, 132 Robert Goff L. J., in our judgment, indicated the proper approach when he stated in respect of a

plea of guilty after an erroneous ruling on a point of law that “since the appellant’s plea of guilty was founded upon that

ruling, we shall grant him leave to appeal from his conviction.”

“In our judgment before an appellant who has pleaded guilty can rely upon an erroneous ruling of law or a material

irregularity, he must show that his plea was “founded” upon the erroneous ruling of law or material irregularity.”

4.4 The view of this Court was expressed at para. 19 of the judgment in Geasley in the following terms:-

“ … an applicant such as in the present case must show that his decision to plead guilty followed on an erroneous ruling

or material irregularity of a fundamental kind, such that proceeding with the trial would have been pointless. The court

should not allow tactical use to be made of the plea of guilty to obtain a new trial in more favourable circumstances”.

4.5 In that context, it is also appropriate to note the substantive grounds of appeal which were sought to be canvassed in Geasley.

The argument put forward on behalf of Mr. Geasley was that the trial judge, despite having his attention drawn to previous authority

from this Court, declined to follow that authority. Fennelly J. described it as being a case where “the applicant does not flinch in his

submissions from alleging that the learned trial judge has committed a fundamental error of law. He claims that the learned trial judge

abandoned the fundamental principle of stare decisis, and that, consequently, the applicant did not have a trial in accordance with

law”.

4.6 On that basis, this Court was prepared to entertain the ground of appeal although, as it happens, the appeal was rejected on the

merits. It seems to follow that, in deciding whether the appeal can be entertained in the first place, the court does not necessarily

have to consider whether the points sought to be raised are good ones although the nature of the grounds sought to be argued must

be analysed to determine whether those grounds, if made out, would establish a "fundamental" error or irregularity.

4.7 There is, however, some question about what is meant by the term "fundamental error or irregularity" as used in paras. 19 and 20

of the judgment in Geasley. Does it mean that the error must be a significant one so that the argument sought to be put forward on

behalf of the appellant is that the trial judge was fundamentally wrong such that it can properly be said that the appellant did not

truly have a trial in accordance with law? On the other hand is it that the error was fundamental to the case so that the error, while

not in itself fundamental, in all the circumstances fundamentally changed the case? Or, indeed is it both?

4.8 Before addressing that question, it is also important to note a more recent judgment of this Court in DPP v Hughes [2012] IECCA

69, where the judgment of the court was delivered by Hardiman J. Hughes was one of a series of cases which followed on from the

decision of the Supreme Court in Damache v DPP and Others [2012] IESC 11. As is widely known, in Damache, s. 29(1) of the

Offences Against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) was found to be inconsistent with the

Constitution, thus rendering a category of warrant issued on foot of that section invalid. Various persons at various stages of the

criminal process sought to place reliance on Damache by arguing that evidence obtained on foot of warrants given under the

impugned section should be excluded. Hughes was a case where the accused had pleaded guilty but subsequently sought, outside the

time limit for appeal, an extension of time so as to raise, for the first time, a Damache point. This Court refused the application for an

extension of time and in the course of so doing Hardiman J., speaking for the court, said the following:-

"All these considerations are greatly strengthened by the fact that the applicant in this case pleaded guilty. He did so

quite freely and willingly, and having been advised by solicitor and counsel of his own choosing. By doing so, he

acknowledged that he was guilty of possession of explosives and a firearm as alleged against him. The seriousness of

these charges needs no additional emphasis. To state the obvious, but sometimes the obvious requires to be stated, a

plea of guilty is “a plea by the accused that he committed the offence”. See Murdochs Dictionary of Irish Law 5th

Edition, Tottel Publishing 2009.

To this, applicant rejoins that he entered the plea of guilty in the belief that s.29 had been validly enacted and was good

and operative law. He was entitled to that view, he says, because there is a presumption of constitutionality, and

because the constitutionality of the measure had, at the time of his plea, been upheld by the High Court.

In my view, these considerations in no way deprive the fact that he pleaded guilty of the force I have attributed to it

above. Section 29 related only to the mode of search which revealed the evidence of his guilt. When that guilt was

admitted, it relieved the prosecution of the necessity to produce that evidence."

4.9 There are, of course, significant differences between the circumstances of the appeal in this case and that which pertained in

Hughes. Mr. Hughes had not sought to make the Damache point or any variation on it at his trial and did not, therefore, as Mr.

Stuurman did in this case, change his plea only after an adverse ruling. Nonetheless, two aspects of the judgment of Hardiman J. in

Hughes just cited seem to this Court to be of universal application. First is the significant status which is properly given to a plea of

guilty. On that basis it seems to this Court that a heavy onus rests on a person who has pleaded guilty but who wishes, nonetheless,

to pursue an appeal against conviction in this Court. That there may be circumstances in which such a course of action is appropriate

is clear from Geasley. That those circumstances should be limited seems equally clear from Hughes.

4.10 In addition, it is important to have regard to the way in which the relevant jurisdiction was described by Fennelly J. in Geasley.

In the passage from para. 19 of the judgment already cited, Fennelly J. made clear that the erroneous ruling or material irregularity

sought to be relied on must be "of a fundamental kind" and that the error had to be such "that proceeding with the trial would have

been pointless". It seems to me to follow from that analysis that a person wishing to pursue an appeal against conviction

notwithstanding a plea of guilty must satisfy this Court both that the error or irregularity was "fundamental" AND that the effect of

the error was fundamental to the trial. Thus, the Court must look at the error or irregularity asserted and assess whether it can

properly be described as "fundamental", meaning that the asserted error or irregularity demonstrates a potential departure to a

significant degree from what should have transpired at a properly conducted trial. An allegation of a less serious error or irregularity,

even though it might be sufficient to justify a conviction being overturned in a case where the accused did not plead guilty and was

convicted by a jury, will not be sufficient to justify permitting an accused who has pleaded guilty after the challenged ruling to

nonetheless pursue an appeal against conviction to this Court.

4.11 In addition, the appellant must satisfy this Court that the error or irregularity alleged had the potential to have such a significant

effect on the trial such that, in the words of Fennelly J. in Geasley, continuing with the trial would have been pointless. In other

words, as well as the error or irregularity being, in itself, of a fundamental kind, it also must have had a fundamental effect on the

trial.

4.12 Such an approach is consistent with the language used by Fennelly J. in Geasley and is also consistent with the high value to be

placed on a public plea of guilty for the reasons identified by Hardiman J. in Hughes.

4.13 Before leaving this point, the Court should refer to one issue briefly raised by counsel at the hearing. It was pointed out that

current criminal procedure does not permit for any form of preliminary rulings (in advance of the start of a trial) to be made on the

admissibility of evidence. See Cruise v. Judge Frank O'Donnell and DPP [2008] 3 I.R. 230 and DPP v. Jagutis [2013] IECCA 4. In Cruise,

Fennelly J., speaking for the majority of the Supreme Court, rejected the suggestion that a summary dismissal application, as provided

by s.4E, of the Criminal Procedure Act, 1967, as inserted by s.9 of the Criminal Justice Act, 1999, could be used as a vehicle for

giving pre-trial rulings on the admissibility of evidence and a range of other questions. However, it is clear that Fennelly J. (paras. 65

& 66) did not necessarily take the view that such a procedure might not be desirable. Rather, it was suggested that, in order for such

a procedure to be introduced, careful legislative provision would be required.

4.14 Given that, in those circumstances, the only way in which an accused can have a determination on a question of admissibility of

evidence is as a result of the conduct of a trial within a trial in the absence of the jury occurring at an appropriate stage in the main

trial, counsel suggested that there were policy reasons for allowing an accused against whom significant adverse rulings were made to

change his plea to one of guilty but nonetheless retain the right to appeal against conviction on the basis that the adverse rulings

were incorrect.

4.15 There may well be merit in considering a statutory scheme specifically directed to allowing pre-main trial rulings on issues such

as the admissibility of evidence. However, no such system is now in place and this Court does not consider that the argument derived

from its absence warrants any more generous approach to the circumstances in which an appeal against conviction should be

permitted to be entertained notwithstanding a plea of guilty than that already analysed.

4.16 Finally, it does not seem to this Court that the scope of appeal against conviction notwithstanding a plea of guilty permitted in

accordance with Geasley is necessarily confined to cases where the plea of guilty concerned was on advice from lawyers or where it

is contended that the trial judge consciously acted in breach of the stare decicis rule. Such a latter contention, as was made in

Geasley, might well, if established, be said to give rise to a fundamental error or irregularity. However, it does not seem to this Court

that the category of fundamental error or irregularity is confined to the precise type of circumstance identified in Geasley although it

must, necessarily, for the reasons already analysed, arise only in a limited class of cases.

4.17 The Court has already set out the substantive grounds of appeal which are sought to be advanced on Mr. Stuurman's behalf.

They amount to a contention that the trial judge made two errors in rulings which had the potential to affect the admissibility of

evidence of alleged admissions. The question which this Court must ask is, therefore, whether it can be said that either individually or

collectively those errors, if made out, could meet the "fundamental" test of being both fundamental errors in themselves, so that Mr.

Stuurman did not truly have a trial in accordance with law, and of having a fundamental effect on the case.

5. Do the Contended Errors Meet the Fundamental Test?

5.1 This Court will deal with the second aspect of the test first. Counsel for the D.P.P. very fairly conceded in the course of argument

that had the ruling of the trial judge gone differently, so that findings were made which would have had the effect of ruling

inadmissible any evidence of the relevant admissions of involvement in drug importation, the prosecution case would have been in

some difficulty. It seems to be more or less agreed, therefore, that the admission evidence was fundamental to the prosecution case,

so that any error concerning the admissibility of that admission evidence could reasonably be said to have had the potential to have a

fundamental effect on the case.

5.2 This raises, of course, a hypothetical question because the trial judge did not, in fact, make rulings which would have the effect

of excluding the relevant evidence and the prosecution, therefore, never had to make any decision as to whether it would have been

worth continuing with the trial if the admission evidence had been ruled inadmissible. Furthermore, the prosecution did not, of course,

ultimately have to lead all of its evidence precisely because Mr. Stuurman changed his plea to one of guilty. However, it seems

reasonable to infer from the frank concession made by counsel for the D.P.P. that such other evidence as the prosecution might have

been able to lead, in the event that the admission evidence was excluded, would have been unlikely to have been sufficient to

sustain a conviction. On that basis, the Court is satisfied that the second leg of the test is met. What are said to have been errors

by the trial judge would have had a fundamental effect on the case such that, had the rulings been otherwise, it is unlikely that a

conviction could have been sustained.

5.3 On that basis, it is necessary to return to the first question. Assuming, for the purposes of the argument, that the Boylan and

Tyndall points urged on behalf of Mr. Stuurman are correct, can they, in the circumstances of this case, be said to amount to

fundamental errors sufficient to meet the Geasley test.

5.4 We propose to start with the Tyndall point. The prosecution case was that Mr. Stuurman had been arrested by Det. Gárda Kieran

O'Reilly at 9.30 p.m. in the evening. It will be necessary to set out the events leading up to that occasion in some more detail when

addressing the Boylan point. However, for present purposes it is sufficient to say that, at the time in question, a search of a second

lorry driven by a person other than Mr. Stuurman had been completed and there was evidence that the large quantity of drugs, which

were the subject of the charges in this case, were found in that lorry. In that context, on day 2 of the trial, in evidence in chief, Det.

Gárda O'Reilly said the following [Transcript, page 1 line 24 to page 2 line 31]

"Q. [COUNSEL FOR THE D.P.P.]: And you were a member, Detective Gárda O'Reilly, of that unit on the 16th of

December, 2008?

A. I was.

Q. When you were on mobile patrol in Dublin; isn't that right?

A. That's correct.

Q. That was in the company of Detective Gárda Griffin, and in the course of your duty, you were contacted by

Detective Sergeant Quinn, and you went, arising from that contact, to the Customs and Excise building at Dublin

port; isn't that right?

A. That's correct.

Q. I think you met other members of the GNDU there and you went into the truck, the container of the truck that

we're calling the 87 truck, BSRG 87; isn't that right?

A. That's correct.

Q. I think you saw a large cardboard box containing several packages, all of which had been insulated with a brown

tape. You suspected that they were controlled drugs and you were satisfied, from experience, that the position of

the box in the trailer and the manner of packaging, in addition to the information that you had at the time, that

you had -- that your suspicion that they were drugs, controlled drugs, was justifiable; is that right?

A. That's correct.

Q. I think you then went into the Revenue Customs and Excise building and you met the accused, Jan Stuurman; is

that right?

A. That's correct.

Q. You knew at that stage that he had been stopped by customs driving another vehicle, the 89 vehicle as we call

it -- as we're calling it, and introduced yourself to him and identified yourself as a member of An Gárda Síocháná;

is that right?

A. That's correct, yes.

Q. You asked him to accompany you to the holding yard, where both vehicles were, and then to the front of the

trailer of the 87 lorry; isn't that right?

A. That's right.

Q. I think you showed him, with a torch, the box that you'd been looking at earlier and its visible contents, and you

told him that you had a belief, which was that the box contained a significant quantity of controlled drugs; isn’t

that right?

A. That's correct, yes.

Q. Did you tell him of any belief you had in respect of him in connection with these controlled drugs?

A. I did. I explained to Jan Stuurman that it was my belief that he had assisted in this importation of controlled

drugs.

Q. And what did you do then at half past 9 in the evening

A. At 9.30 on that night I arrested Jan Stuurman under section 25 of the Misuse of Drugs Act for an alleged

offence under section 15. I cautioned Jan Stuurman. I handcuffed him and I transported him, with the assistance

of other gárdaí, to Store Street Gárda Station".

5.5 When reliance was placed on Tyndall, having heard argument from both sides, the trial judge ruled as follows - [Transcript Day 2

page 20 lines 31-33]:-

"All right, thanks. Well, it does constitute a statement of belief but the evidence has to be construed as a whole, and

immediately prior to that he did give evidence of his involvement in the investigation. I think it's just about sufficient."

5.6 It is clear, on any view, that there is a very significant difference between the facts of this case and those which were before

the Supreme Court in Tyndall. In Tyndall, the arresting officer had given no evidence at all of having any relevant suspicion. It was

urged on behalf of the D.P.P. that the existence of a suspicion should be inferred from the fact that the arresting officer had gone

ahead to arrest; something which, of course, he could only lawfully do if he had a suspicion. That somewhat circular argument was

rejected by the Supreme Court. However, here, there was evidence given by the arresting gárda that he had explained to Mr.

Stuurman that it was the gárda's belief that Mr. Stuurman "had assisted in this importation of controlled drugs". That evidence was

given, as the trial judge pointed out, in the context of the description just given in the immediately prior part of the gárda's evidence

of his involvement in the investigation, of the finding of the drugs and of his showing the relevant box to Mr. Stuurman.

5.7 In this case, there was, therefore, evidence of the gárda's reasonable suspicion and, of the circumstances which led him to form

that suspicion.

5.8 It is next necessary to turn to the Boylan point. The statutory regime with which this Court was concerned in Boylan was

s.23(1B) of the Misuse of Drugs Act of 1977, as amended by s. 12 of the Misuse of Drugs Act, 1984 which provides as follows:-

"(1B) Where a member of the Gárda Síochána decides to search a vehicle, vessel or aircraft under this section he

may as regards the person who appears to him to be the owner or in control or charge for the time being of the

vehicle, vessel or aircraft make any one or more of the following requirements:

(a) require such person, pending the commencement of the search, not to move from the vehicle,

vessel or aircraft, as may be appropriate, any substance, article or other thing,

(b) in case the decision relates to a vehicle and the place in which he finds the vehicle is in his

reasonable opinion unsuitable for such search, require such person forthwith to take the vehicle or

cause it to be taken to a place which he considers suitable for such search and which is specified by

him,

(c) require the person to be in or on or to accompany the vehicle, vessel or aircraft, as may be

appropriate, for so long as the requirement under this paragraph remains in force."

5.9 Some reference should also be made to subs. (1E) which provides that a requirement mentioned in para. (c) of subs. (1B) of the

section is to remain in force until the search in relation to which it is made is completed. In addition, subs. (1F) specifies that where a

requirement described in para. (a) of subs. (1B) of the section is made of a person, the search in relation to which the requirement is

made is to be carried out as soon as is practicable.

5.10 In addition, it is necessary to note s. 4(2) of the Criminal Justice Act, 1984, ("the 1984 Act") which provides that, where a

member of An Gárda Síochána arrests without warrant a person, such person may, in the circumstances specified in that section, be

brought to a gárda station and detained for a period of six hours.

5.11 The judgment of this Court in Boylan was given by McCarthy J. The facts, as recorded in the judgment, were that drugs were

found in a vehicle at about 9.30 in the evening. Mr. Boylan, who was in charge of the vehicle in question, was found by the trial judge

to have been detained for a period of approximately two hours after which he was brought to a gárda station. During that period Mr.

Boylan was not required, in the words of the section, to be in or on or accompany the vehicle, but rather was brought to a shed at

the ferry port in question where he was questioned by a number of members of An Gárda Síochána. In those circumstances, this

Court held that Mr. Boylan was, in fact, arrested shortly after the drugs were found around 9.30. The Court noted that there is an

obligation, under s. 4 of the 1984 Act, that a person who is arrested without warrant be brought to a gárda station as soon as

reasonably possible. In those circumstances, and in the light of the Court's finding that Mr. Boylan had been arrested around 9.30 and

had not been brought to the gárda station for two hours thereafter, it was held that his entire detention was tainted.

5.12 The equivalent section applicable to an officer of Customs and Excise is s. 2(2)(b) of the 1988 Act which provides as follows:-

"(b) Where an officer of Customs and Excise decides to search a vehicle, vessel or aircraft under this section, he

may make any one or more or all of the following requirements of the person who appears to him to be the owner

or person in control or charge for the time being of the vehicle, vessel or aircraft:

(i) require the person, pending the commencement of the search, not to remove from the vehicle,

vessel or aircraft, any substance, article or other thing,

(ii) where the decision to search relates to a vehicle and the place where he finds the vehicle is in his

opinion unsuitable for the search, require the person forthwith to take the vehicle (or cause it to be

taken) to a place which the officer considers suitable for the search and which he specifies,

(iii) require the person to be in or on or to accompany the vehicle, vessel or aircraft for so long as the

requirement under this paragraph remains in force."

In addition, subs. (5) of the same section specifies that a requirement mentioned in subs. (2) shall remain in force until the search in

relation to which it is made is completed but that such search should be carried out as soon as is practicable.

5.13 The facts of the present case were that, based on information from a confidential source, Customs and Excise officers acting in

conjunction with gárdaí in a joint operation stopped two trucks as they disembarked from a ferry in the Dublin Port area. The first

truck was stopped at 5.18 p.m. with Mr. Stuurman's truck being stopped at 5.22 p.m. Customs officer Martin Rogers immediately

informed Mr. Stuurman that he was detaining his truck in accordance with s. 2 of the 1988 Act for a drugs search. Mr. Stuurman was

directed to drive his truck into an area a short distance from the ship. A sniffer dog was used to search the cab of his truck but

nothing was found. Shortly after that both trucks were driven to an area called New Custom House which is approximately one mile

from the place where the vehicles were originally detained. The trucks were driven by Customs officials while Mr. Stuurman was

transported in an official car accompanied by Customs officers. It would appear that the other truck was searched first and packages

containing the drugs in question were found concealed in boxes. The events at 9.30 p.m. when Mr. Stuurman was arrested by Det.

Gárda O'Reilly have already been described. The evidence suggested that the trucks had arrived at New Custom House at

approximately 7.20 p.m. Evidence was given by Customs officers that a decision was made to search the other truck first and that "all

our time and resources went into that operation". The evidence was that Mr. Stuurman remained in the general location of the vehicle

while the earlier search on the accompanying vehicle was carried out but was not in any way questioned at that time. There was also

evidence that Mr. Stuurman was informed, prior to his vehicle being moved, that "he was still subject to the search provision". There

was also evidence that "the search provision was enforced … until such time as the search provision had been concluded".

5.14 In that context, the trial judge made the following findings:-

"I'm satisfied that a search was intended, that in fact a short customary search or cursory search did take place. The

focus was then on the other vehicle and the very large amount of drugs was found on the other vehicle. Very shortly

after that, the gárdaí became specifically involved with Mr. Stuurman and I don't think it would be an unfair inference to

draw that if the search of the first vehicle was negative, that a search would have continued in relation to Mr.

Stuurman's vehicle in a more immediate sense than actually occurred. But I'm satisfied that there was sufficient by way

of suggestion that a search was on the radar to make and to continue in force the operative requirement to accompany

the vehicle in question. I am also satisfied that, both in terms of the section which refers to alternatives of being in or

on or to accompany, that it wasn't necessary for Mr. Stuurman to be left, for example, in the cab of the vehicle, or for

example in the trailer unit, or for example standing in the yard in the open air five yards away whilst the other vehicle

was being searched. I see nothing improper in him being brought to a room within the Customs House and under the

supervision of a Customs Officer at all times. Again, I see nothing sinister or wrongful in that."

5.15 It should also be noted that the trial judge did then go on to indicate that it did not matter whether it was "an arrest situation"

and that it probably was such a situation, and further found that even if he was wrong in that conclusion, the subsequent arrest by

the gárdaí left Mr. Stuurman in lawful custody so that the admissions made thereafter were not in any way tainted.

5.16 Against that background, it is necessary to compare and contrast the situation which applied in Boylan and that which applied in

this case. The Court is not satisfied that anything much turns on any difference between the two statutory regimes. It is true that

there are some differences between the respective sections such that the length of time in respect of which a direction to remain

with a vehicle is to last is not described in the same way. Likewise, s. 4(2) of the 1984 Act does not seem to have application to the

facts of this case. However, so far as is truly material to the issues which arise in this case, the Court is satisfied that the respective

statutory regimes are extremely similar. It is clear that in both cases appropriate officers can give a mandatory direction to a person

who appears to be in charge of a vehicle which requires the person in question to remain in or on or accompany such a vehicle for the

purposes of its being searched. The search is required to be carried out as soon as is practicable.

5.17 It seems to me that those measures, provided that they are properly applied, do not constitute an arrest. A person is obliged to

comply with such a direction and if failing so to do can be arrested. However, the imposition of a direction, while restricting a person's

freedom of movement, is not, in itself, an arrest. If it were an arrest then there would hardly be any necessity for a provision entitling

appropriate officers to arrest for failure to comply.

5.18 There are, however, significant differences between the facts of Boylan and the facts of this case. In Boylan, the accused,

instead of being required to remain with the relevant vehicle, was taken to a room and questioned by officers of An Gárda Síochána.

When his presence in that room was sought to be justified under the direction provisions applicable in his case (those which empower

An Gárda Síochána), the court held that, on the facts, taking an individual to a room and questioning him could not be brought within

the terms of the direction provisions which simply oblige a person to accompany the vehicle for as long as the direction remains in

force. The evidence in this case established that a search was ongoing at all material times save for the period when the vehicles

were being transported from the immediate disembarkation area to a more convenient search location. It is true that Mr. Stuurman's

vehicle was not significantly searched but the evidence suggests that the reason for that was, as the trial judge found, that a

decision was taken to search the other vehicle first and, when drugs were found in the other vehicle, Mr. Stuurman was arrested.

5.19 There are a range of points that might be made concerning the question of whether Mr. Stuurman can be said to have been

under arrest at any time up to 9.30 p.m. when he was, undoubtedly, arrested by An Gárda Síochána.

5.20 The fact that he was not exactly beside the vehicle but rather was in a nearby room in the company of an officer of Customs

and Excise might raise a debate about whether he could be said to be "accompanying" the vehicle within the terms of the statutory

direction or whether he was truly detained. In that regard, the trial judge took the view that Mr. Stuurman did not have to be literally

beside the vehicle but rather could be in any convenient location in the vicinity while the search was being carried out. Next, it might

be said that the vehicle was not searched as soon as practicable because the other vehicle was searched first. In that regard, the

trial judge took the view that it was reasonable for the officers of Customs and Excise to allocate their resources to searching one

vehicle first and that, in that context, those officers remained of the intention to search Mr. Stuurman's vehicle as soon as they were

finished with the first vehicle save that such a course of action was overtaken by the event of the finding of drugs in the first

vehicle. Then, it might be said that it could be concluded that Mr. Stuurman was not free to go and thus was under arrest. However,

the relevant Customs officials gave evidence that, while it might well, hypothetically, have been the case that they would have

arrested Mr. Stuurman if he tried to leave, it was said that such a situation did not arise because Mr. Stuurman always complied, as

was his legal obligation, with the direction to accompany the vehicle. In addition, it might be argued that there was no need to make

a continued direction to Mr. Stuurman to remain with the vehicle in question when it was decided to search the other truck first and

it was argued that the use of a direction by Customs officials was a device to detain Mr. Stuurman until the other truck had been

searched. However, the trial judge did not accept that submission and was not prepared to hold that Customs officials had acted

improperly in that way.

5.21 Finally, attention was drawn to the fact that this was, undoubtedly, a joint operation by An Gárda Síochána and Customs and

Excise. However, this Court finds that the trial judge held, correctly, that as the statutory direction had been given by an officer of

Customs and Excise, its validity fell to be considered in accordance with the 1988 Act and that the presence of gárdaí as part of a

joint operation did not alter that fact.

5.22 For Mr. Stuurman to have been the subject of an unlawful arrest or detention the court would need to have taken the view that

his freedom of movement was restrained not by virtue of his obligation to comply with a lawful direction given under the 1988 Act but

rather, as in Boylan, in circumstances which went outside the parameters of such a direction. Any such decision in any case will,

necessarily, be dependent on the facts of the case as they are found by the trial judge.

5.23 Even if the trial judge's overall assessment of the facts of this case could be shown to be in error in some sufficient way so as to

render his decision on the lawfulness of Mr. Stuurman's ultimate custody and, thus, the admissibility of evidence of his admission,

incorrect, the Court is not satisfied that, even taken at its height, any such error could be described as being a fundamental error of

law. There was more than sufficient difference between the factual backdrop in Boylan, on the one hand, and Mr. Stuurman's case,

on the other, to enable the trial judge to come to a view, consistent with Boylan, which led to a different conclusion in this case. It

must be emphasised that the Court is by no means determining that the trial judge made any error. What it does determine is that

even if, in any or all of the ways asserted, the trial judge was incorrect in ultimately coming to the view that Mr. Stuurman's case

was sufficiently different to Boylan (on the basis of the argument that it was a case where Mr. Stuurman was only constrained by the

proper application of the relevant statutory direction), same would not be a major error of principle but rather an error which would

flow from an inaccurate overall assessment of the facts. Such an error could not, in the view of the Court, be described, in all the

circumstances of this case, as fundamental such that Mr. Stuurman could be said not to have had a trial in accordance with law.

5.24 In that context, the Court refers to the point made on behalf of Mr. Stuurman to the effect that, at least from some passages in

his ruling, it might be inferred that the trial judge had come to the conclusion that Mr. Stuurman was in fact arrested albeit lawfully or

that any irregularity was cured by his subsequent arrest by An Gárda Síochána at 9.30 p.m. It is said that those passages from the

trial judge's ruling make it unclear as to what the true findings of the trial judge on these issues were. The Court is satisfied that,

even if the points raised on behalf of Mr. Stuurman under that heading are correct, same could not amount to the sort of fundamental

error which would justify permitting him to pursue an appeal against conviction notwithstanding his plea of guilty. The high point of

the argument made on behalf of Mr. Stuurman can not, in the view of this Court, go beyond an assertion that the trial judge's ruling

was not sufficiently clear to allow this Court to conclude safely that Mr. Stuurman was in lawful custody at the time when he made

admissions of involvement in drug importation. None of the arguments raised, even if they were to be made out, are such as could

allow any errors established if those arguments proved correct as being properly described as being of so fundamental a kind that Mr.

Stuurman could not be said to have had a trial in accordance with law up to the point in time when he changed his plea to one of

guilty.

5.25 It follows, therefore, that the Court is not satisfied that Mr. Stuurman has established, even assuming the grounds which he

wishes to assert are correct, that there was anything close to a fundamental error in this case. It follows that this is not one of

those cases where it is appropriate, in the light of his plea of guilty, to permit Mr. Stuurman to pursue an appeal in the face of such a

plea of guilty.

6 Conclusion

6.1 For those reasons, the Court is satisfied that this case falls outside the scope of the exceptional cases where a party can

properly be permitted to appeal against conviction notwithstanding a plea of guilty.

6.2 It follows that the appeal must be dismissed.