Report on Mandatory Sentences - Law Reform Commission

goods. 7 Where, on the other hand, a person does not have custody of the goods but exercises control
over them, he or she is said to have “constructive possession” of the goods. By way of illustration,
McAuley and McCutcheon refer to the judgment of Davitt P in Minister for Posts and Telegraphs v
Campbell: 8
“... a person cannot, in the context of a criminal case, be properly said to keep or have
possession of an article unless he has control of it personally or by someone else. He cannot be
said to have actual possession of it unless he personally can exercise physical control over it;
and he cannot be said to have constructive possession of it unless it is in the actual possession
of someone over whom he has control so that it would be available to him if and when he wanted
it... He cannot properly be said to be in control or possession of something of whose existence
and presence he has no knowledge.” 9
4.05 Thus, the term “possession” is broad enough to describe the range of roles played by those
involved in the drugs supply chain. At one end of the scale, there are the high-level offenders who
manage and direct the supply chain. These may be described as having constructive possession of the
drugs as they exercise ultimate control over the supply chain. At the other end of the scale, there are the
low-level offenders who, for instance, are coerced into delivering the drugs to their final destination.
These may be described as having actual possession of the drugs as they exercise physical control over
the drugs.
4.06 The Court of Criminal Appeal has considered the issue of possession in a number of drugs
cases. In The People (DPP) v Gallagher, 10 the applicant sought to appeal his conviction on the ground
that the evidence did not establish that he as a matter of law had ever been in possession of the drugs in
question. It was submitted that since the container had been at all times under Garda surveillance, it,
together with its contents, had been in the custody and control of the authorities and could not in law,
therefore, be described as being in his possession. In rejecting this argument, the Court stated:
“The word ‘possession’ is a common word of the English language and well known to the law.
There are many offences concerning unlawful possession such as those relating to firearms,
stolen goods, pornography, lethal weapons etc. It is a term which may indeed require particular
analysis in certain contexts such as where there is an issue of constructive possession. In this
case the context is plain. It is one of actual possession. Possession having been taken of the
container on delivery, the men in question opened it and proceeded to unload its contents...
[T]hey were exercising physical control over the container and its contents. There could not be a
clearer case of actual possession. The fact that the gardaí were involved in a close surveillance
operation with a view to arresting those involved in the transportation and unloading of the drugs
does not take away from these objective facts and does not in law mean that those involved did
not at the time of their arrest have possession of the drugs in question... Surveillance operations
based on information and intelligence are part and parcel of policing techniques and it would be
ludicrous to suggest that such surveillance operations, which closely monitor illegal activity with a
view to arresting the culprits, could in some way exculpate such culprits from responsibility for
their actions and in particular mean that they did not have possession of that which was de facto
in their possession.”
4.07 In The People (DPP) v Goulding, 11 the Court of Criminal Appeal considered whether there was
sufficient evidence to leave the question of possession to the jury. An independent witness had testified
to seeing a package being thrown from the passenger side of a car in which the applicant had been the
front-seat passenger. The Court of Criminal Appeal concluded that this constituted sufficient evidence.
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McAuley and McCutcheon Criminal Liability (Round Hall, Sweet and Maxwell, 2000) at 208.
Minister for Posts and Telegraphs v Campbell [1966] IR 69.
Ibid. Cited with approval by the Court of Criminal Appeal in The People (DPP) v Foley [1995] 1 IR 267 at 286.
The People (DPP) v Gallagher [2006] IECCA 110.
The People (DPP) v Goulding [2010] IECCA 85.
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