IESC 27 · Supreme Court

[2002] IESC 27

THE SUPREME COURT

142/01

McGuinness J

Hardiman J.

Fennelly J.

Between:

ROBERT DUNNE

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT delivered the 25th day of April, 2002, by Mr. Justice Hardiman.

1. We are long habituated to the idea that technology and science can snare the criminal. From the familiar photograph and

fingerprint to the microscopic fragment of hair or tissue, the role of their products in detection and the proof of guilt has entered into

the public consciousness. The work of the criminalist, the SOCO, chemist, the photographer, above all the DNA expert, are firmly

established. The law itself has changed to accommodate them. A suspect may be fingerprinted, photographed, compelled to give up

his clothing and possessions for testing and to supply samples of his hair, tissue or bodily fluids under a variety of statutes. Apart

from specific powers, the essential criteria for such testing is set out in the Criminal Justice (Forensic Evidence) Act, 1990, in Section

2(5)(b) that there is reasonable ground for believing that “the sample will tend to confirm or disprove the involvement of the person

from whom the sample is to be taken in the offence”. See also the Road Traffic Act 1994 Sections 12 - 15, the Measuring and

Photography of Prisoners Regulations 1955, (made under the Penal Servitude Act 1981), Criminal Justice Act 1984 Sections 4,6, and

28, Criminal Evidence Act 1992 Section 16, Criminal Justice Act, 1997 Sections 7, 11, 12, 19, the Health Safety and Welfare Act,

1989 Section 34.

2. None of this is controversial. If science or technology can provide certainty in matters of great importance which would otherwise

be determined on human testimony which may be fallible or worse, who but a guilty man would not willingly invoke its aid? On this

theory both individuals on whom suspicion has fallen (mandatorily) and whole populations (voluntarily) have been submitted to

scientific and technological tests. The balance has long been struck in favour of the use of technology in the search for the

perpetrators of crime, even when the processes involved are minimally invasive or transiently painful or undignified for innocent

people. The greater good prevails.

3. This development is due in large measure to the development of techniques of previously unimagined sophistication, from the

telephoto lens and the video camera to the extraordinary precision of DNA analysis. Additionally, and at much the same time, our faith

in some older techniques has been undermined. From visual identification to alleged confessions, the last three decades have provided

excellent reason for avoiding over reliance on them.

4. This case does not challenge any of these developments. It seeks to take them further. It raises the question, is it open to the

authorities on whom such wide powers and resources have been conferred by law or by technology, to decide in a particular case,

that they will not use them? Alternatively, if for no stated reason the authorities simply do not avail of some technical assistance in

the detection of crime, which might have inculpated or exculpated the suspect, is this relevant to their ability to prosecute him using

evidence of a more traditional sort?

5. Video cameras are now a prominent part of the street furniture of our towns and cities, including some housing estates, and of the

equipment of business premises. Their role in the prevention and detection of crime is obvious and well publicised. The Gardaí regularly

appeal for assistance on the “Crimeline” programme by showing video tapes of robberies. Witnesses are asked to view video footage.

Notorious crimes such as the murder of the late Jamie Bulger were solved in large part by inspecting video film from dozens of retail

outlets. Even when a video film does not allow positive identification of an individual it may allow an expert to gauge the height and

build of a person shown, so as to put one sort of suspect within the net of suspicion, and thereby exculpate another sort. Recent

weeks have seen the allocation of millions of Euro of public money to provide video coverage of the public areas of large provincial

towns, and an expansion of the existing video coverage in the capital. Shops routinely display notices to the effect that the premises

are covered by video cameras “for your protection and for the detection of crime”. In particular, premises which stay open late at

night and specifically Filling Stations and the shops often associated with them, are obviously and routinely subject to video

surveillance.

Video Evidence.

6. Video evidence, accordingly, can have very dramatic effect in appropriate cases. If the film is clear, it approximates to having a

good eye witness. Unlike human witnesses, however, what the camera sees can be played over and over again and consistencies or

inconsistencies with other evidence noted. Even an unclear image can permit the exclusion of a particular person. In my judgment in

Braddish v. DPP (Supreme Court unreported 18th May, 2001) I said:-

“It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of

the crime”.

7. Despite this, it has often been the experience of those concerned with the defence of criminal cases, and with civil litigation, that

when video evidence is sought from public or private sources it is unavailable either due to alleged malfunction of the equipment or,

more commonly, because it has been “wiped”. The unavailability of video evidence may not be, and in the majority of cases is not,

sinister in the sense of suggesting deliberate destruction. The Defendant in a criminal case may not (as in Braddish) have been

arrested for some months after the crime and may not have been charged until many more months have elapsed. At least until arrest,

and probably until after a charge has been preferred, it is difficult to see that the eventual Defendant would have had any right to

require the procurement of evidence. The prosecution rarely suffer this particular disadvantage: they are first on the scene and

usually in a position to ascertain whether there is a video camera and to take possession of the tape before it is “wiped”.

8. Precisely because video footage may be definitive of guilt or innocence its absence will be bitterly regretted by an innocent

Defendant and a guilty one will ape the same sentiment.

Legal aspects of video evidence

9. The Court has not been referred to any statute or regulation relating specifically to video evidence. Nor is there any statutory or

regulatory rules in relation to the obtaining and preservation of evidence generally. The matter has been left to the Courts. In my

judgment in Braddish I cited with approval the statement of Lynch J. in Murphy v. DPP [1989] ILRM 71 where, having surveyed the

authorities, the learned judge said:-

“The authorities establish that evidence relevant to guilt or innocence must in so far as is necessary and practicable be

kept until the conclusion of the trial. These authorities also apply to the preservation of Articles which may give rise to

the reasonable possibility of securing relevant evidence”.

10. In arriving at this conclusion Lynch J. had surveyed a number of early authorities including the judgment of Pallas C.B. in Dillon v.

O’Brien and Davis [1897] 20 LR IR 300. There, the learned Chief Baron had said:-

“The interest of the State in the person charged being brought to trial in due course necessarily extends as well to the

preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial. His custody is of

no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which his trial will be

no more than an empty form. But if there be a right to production or preservation of this evidence I cannot see how it

can be enforced otherwise than by capture”.

11. Dillon v. O’Brien and Davis was a civil action for detinue of certain article which police officers had taken possession of at the time

of an arrest. The Defendants said that the items were required as evidence to support charges of combination and conspiracy. They

therefore pleaded that they had “necessarily seized taken and detained the chattels for the purpose of producing the same as

evidence”. This plea was upheld in an exhaustive judgment of the Chief Baron in which Dowse B. and Andrews J. concurred.

12. Accordingly, the power to seize goods of evidential significance is based in the interest of the State itself, and that interest is

described as an interest “in the person charged being brought to trial in due course”. (Emphasis added) The right to seize or

“capture” such items exists in order to prevent their destruction, which is a manifest risk in the case of a video tape. The learned

Chief Baron also spoke in terms of a “right to production of this evidence”, which can scarcely be understood as a right existing in one

party only. Very significantly the right is to the production of evidence of innocence as well as guilt.

13. A few years earlier, the Queen’s Bench Division in England had taken a view similar to that of Pallas CB. In R. v. Lushington, ex

parte Otto [1894] I QB 420 the Defendant had sold goods to Mr. Otto. He was subsequently arrested on foot of an extradition

warrant alleging the theft of the same goods in France. His extradition was ordered and Otto sought an order for the return of the

goods to him. He was unsuccessful. Wright J. said:-

“In this country I take it that it is undoubted law that it is within the power of, and is the duty of, Constables to retain

for use in court things which may be evidences of crimes”.

14. The word “retain” in this sense is defined by the Oxford English Dictionary as “to keep in custody or under control, to prevent from

departing, issuing or separating, to hold fixed in some place or position”.

15. In my view, the existence of these Victorian cases is sufficient to demonstrate that the approach taken by this Court in Braddish

and in this case, is by no means a novel one. Dillon v. O’Brien was cited with respect in Chic Fashions (West Wales) Limited v. Jones

[1968] I AER 229 and Ghani v. Jones [1969] 3 AER 1700. These cases are the leading modern English authorities on the common law

power to seize items which may be of evidential use. It appears, in particular from the five criteria for such seizures at page 1705 of

the latter case that material in the possession of an entirely and obviously innocent third party may nevertheless be seized for

evidential purposes at least where the owner’s conduct in refusing to make it available “is quite unreasonable”. In all the cases, this

right to seize is the corollary of a duty to make available all relevant evidence in criminal proceedings, where it indicates the guilt or

the innocence of the person charged or suspected.

16. In Braddish, having recited the facts of the case and referred to the cases I said:-

“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a

bearing or potential bearing on the issue of guilt or innocence. This is so whether the prosecution proposes to rely on the

evidence or not, and regardless of whether it assists the case the prosecution is advancing or not.”

17. Later in the judgment, having further considered this duty, the following passage occurs:-

“[The duty] cannot be interpreted as requiring the Gardaí to engage in disproportionate commitment of manpower or

resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on

the facts of each case”.

18. In Braddish, the further trial of the applicant was prohibited in circumstances where the Gardaí had a video tape from which a

member purported to identify the Defendant. The video tape was then returned to the owner and wiped after the Gardaí decided that

they would not rely on the video as evidence, but would advance the case exclusively on the basis of an alleged confession.

The U.K. code of practice

19. In one of the cases cited to us on hearing of this appeal, Ebrahim v. Felthan Magistrates [2001] 1 AER 831, a divisional court of

the Queen’s Bench Division in England considered two cases where video evidence had ceased to be available. At page 834 - 836 of

the report the Court discussed the “1997 Code of Practice and the Attorney General’s new guidelines” which apply in that jurisdiction.

This suggests an approach not dissimilar in principle to that which this Court supported in Braddish. Firstly, the Divisional Court

observed that:-

“Since 1997 the police and other investigating authorities have had the benefit of codified guidance relating to the nature

and extent of their duty to obtain and retain ‘material which may be relevant to their investigation’ ”.

20. The “relevant” material was defined in paragraph 2.1 of the Code of Practice as follows:-

“Material may be relevant to the investigation if it appears that it has some bearing on any offence under investigation or

any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any

impact on the case”.

21. Paragraph 3.4 of the Code provides that:-

“In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards

or away from the suspect. What is reasonable in each case will depend on the particular circumstances”.

22. There is also provision for obtaining of possible material evidence which is in the possession of third parties, and, at paragraph 20,

to the effect that in resolving the question of whether particular material should be obtained and disclosed, any doubt should be

resolved in favour of doing so.

23. According to the report in Ebrahim, these guidelines are said to “preserve and amplify common law rules”. While I have not had

the opportunity of reading the guidelines any further than they appear in the report, that statement appears to be true. From one of

the cases cited later in the report, it also appears that, at least in some police districts in the United Kingdom, constables’ notebooks

include a common form for taking particulars of alleged crimes, which features a box to be ticked as to whether there is, or is not, a

possibility of video evidence.

24. It appears to me that, both in relation to video evidence and more generally, there is a good deal to be said for adopting

guidelines of the sort referred to in Ebrahim.

Relevant facts of the present case.

25. In general, I agree with the statement of the facts of this case in the judgment about to be delivered by Mr. Justice Fennelly. It

seems particularly important that there was a video system in operation on the premises allegedly robbed, consisting of a number of

cameras covering the forecourt, the inside of the shop and the till area including the security hatch. The owner also said that there

was a standard procedure in the event of a robbery: the Gardaí would be notified and they would arrive and view the video. The tape

would then be given to the Gardaí. The owner was certain that the video system was in operation at the time of the robbery and was

“likely to have captured the events immediately prior to and subsequent to same, including the culprits moving to and from the said

hatch area”.

26. Unfortunately, the premises in question have been the subject of so many robberies that the owner could not recall this particular

one specifically but he said that the same procedure was usually followed and that the Gardaí were fully aware of the video

surveillance system and had taken away video tapes in respect of less serious events.

27. On this basis there is ample support for the learned trial judge’s finding that it was more likely than not that the Gardaí were given

the video tapes. This, however, is hard to reconcile with the evidence of Detective Garda Kenny that the video “was never given to

or obtained by any member of the Garda Síochána connected with the investigation of this case or otherwise”.

28. The Garda who made this averment did not attend at the filling station on the night of the robbery. A suggestion in the course of

the hearing of this appeal that it might be adjourned to allow evidence from the Guards who did attend to be obtained was not

availed of by the respondent.

Relevance of the video tape

29. It seems to me that the video tape is certainly relevant material on a common sense basis and is also relevant within the meaning

of the U.K. guidelines quoted above. It is plainly capable of “having a bearing or potential bearing on the issue of guilt or innocence”

to use the form of words employed in Braddish. Having regard to the uncontradicted evidence to the effect that the video

surveillance system existed, it appears to me that the phrase “all reasonable lines of inquiry” would include a simple question to the

staff of the filling station as to whether the video surveillance systems was in operation and a request to be given the tape if it was.

On the basis of the past history of the Garda dealings with the premises there seems no room for doubt that such a request would

have been successful.

Braddish distinguished.

30. It is perfectly true, as Mr. Justice Fennelly points out, that the facts of this case are distinguishable from those of Braddish.

There, the video tape had undoubtedly been in the possession of the Gardaí and used by them. They had voluntarily parted with

possession of the tape, leading directly to its non-availability. Here, there is no positive proof that the Gardaí ever had the tape. It

may not be necessary to follow the learned trial judge in holding that they probably did obtain it: in any event it is clear that they

could have done so.

Distinction or difference?

31. I repeat the main point of principle in Braddish:-

“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a

bearing or potential bearing on the issue of guilt or innocence”. (Emphasis added)

32. It does not appear to me that the undoubted distinctions which exist between the facts of the two cases are relevant in applying

that statement of principle.

33. The matter is not concluded even if one accepts the uncontradicted statement in the respondent’s affidavit that the video was

never given too or obtained by any member of the Garda Síochána. Why was that? It is clear that it would have been reasonable for

any guard attending the scene to have inquired about the video. It is not averred that this took place. If it did take place, no

explanation has been offered as to why they did not obtain a tape. Since the duty of the Gardaí extends to “seeking out” as well as

“preserving” evidence, the distinction of the facts here from those of Braddish does not appear to me to address the central issue.

34. The learned trial judge quite correctly pointed out that there were possible innocent explanations: the equipment might not have

been working, the tape might have been accidentally erased or lost. But if any of these contingencies had actually arisen one would

have expected the facts to be placed on affidavit. I observed in the course of the hearing that there appeared to me to be an

element of gamesmanship in the affidavits sworn on behalf of the respondent. He says in effect:

“There is evidence that the guards never got the video tape. I do not have to go any further and I do not choose to do

so”.

35. If the duty of the Gardaí were limited to preserving evidence which actually comes into their hands the respondent would be

entitled to win on this argument. But since their duty extends also to taking reasonable steps to seek out material evidence, I do not

believe that these averments go far enough. Indeed, if these averments were sufficient it would constitute a positive incentive to

investigators not to seize or request permission to take evidence which might contradict their suspicions or undermine the reliability of

other evidence.

The Ebrahim approach.

36. Counsel for the respondent urged on us that, even if we found his evidence inadequate or unsatisfactory, we should follow the

approach of the Divisional Court of Queen’s Bench. This, he said, involved attributing the case to one of the two categories set out at

page 836ff of the report.

37. This case suggests that a court may stay proceedings - and the learned judges are speaking of a trial court - (i) in cases where

the Court concludes that the Defendant cannot receive a fair trial and (ii) in cases where it concludes that it would be unfair for the

Defendant to be tried. The first type of case, in the view of the English Court, is “few and far between” . In relation to the second

type of case - which English law envisages as showing a lack of “good faith or the prosecutors having been guilty of such serious

misbehaviour they should not be allowed to benefit from it to the Defendant’s detriment” - it is“hoped” to be very rare. The Divisional

Court stressed that the first category of case would be few and far between because:-

“If there is sufficient credible evidence, apart from the missing evidence, which if believed would justify a safe conviction,

then a trial should proceed, leaving the Defendant to seek to persuade the jury or magistrates not to convict because

evidence which might otherwise have been available was not before the Court through no fault of his. Often the absence

of a video film or fingerprints or DNA. material is likely to hamper the prosecution as much as the defence”.

Relevant legal principles.

38. I do not believe that the decision of the English Court in Ebrahim correctly expresses the principles to be applied in this

jurisdiction.

39. Firstly, it must be noted that there is a major procedural difference between the two jurisdictions. It appears that in the United

Kingdom the usual procedure in cases such as this is to apply to the Court of trial to stay the proceedings in the exercise of its

inherent jurisdiction. This is on the basis that “the Courts retain an inherent jurisdiction to restrain what they perceive to be an abuse

of their process this residual and discretionary power in any court to stay criminal proceedings as an abuse of its process is one which

ought only to be employed in exceptional circumstances, whatever the reasons submitted for invoking it”. (Ebrahim page 836).

40. In The State (O’Connell) v. Fawsitt [1986] IR 362 a somewhat similar view was expressed by Murphy J. in the High Court in

refusing to grant an Order of Prohibition in respect of a criminal trial which had been long delayed. He thought that the matter was

one for the trial judge in the Circuit Court:-

“If the learned Circuit Court judge is satisfied that, in all of the circumstances of the case as established before him, the

delay was excessive or unduly prejudicial to the prosecutor it would be the right and duty of the Circuit judge to dismiss

the pending charges and I have no reason to doubt that he will adopt that course if it is appropriate so to do”.

41. This decision, however, was successfully appealed to the Supreme Court. The judgment is that of Finlay C.J. with which Walsh,

Henchy, Griffin and McCarthy JJ agreed. He said:-

“I have come to the conclusion that, in this portion of his judgment, the learned trial judge was in error. I am satisfied

that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the

appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an Order

of Prohibition. It may well be that an equal remedy or alternative remedy in summary cases is an application for the

justice concerned to dismiss because of the delay. In the case of a trial on an indictable charge, however, I am not

satisfied that it is correct to leave to the trial judge a discretion as to whether, as it were, to prohibit himself from letting

the indictment go forward or whether to let the indictment go forward. A person charged with an indictable offence and

whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and

pleading before the jury”.

42. It may be noted that in this country as in England the principal single ground on which it is sought to interfere with criminal trials

going ahead is that of delay. But there seems to be no reason why the same principle should not apply where it is sought to prevent

a trial proceeding for other reason. Accordingly it seems that the appropriate course, at least in the case of a proposed trial on

indictment, is an application for judicial review. Nolan v. DPP [1994] 3 IR 626 was a case involving a trial in the District Court to which,

it appears, different procedures may apply.

43. I believe there is only one test to be applied on such an application. It is that deriving from the judgment of Denham J. in B v. DPP

[1997] 3 IR 140, at 196:-

“The communities right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due

process. If there is a real risk that the applicant would not receive a fair trial then, on the balance of these

constitutional rights the applicant’s right would prevail.”. (Emphasis added)

44. This is very similar to Finlay C.J’s formulation which speaks of events which “prejudice his chances of obtaining a fair trial”.

45. This is a very different test to that applicable under either of the sub-heads into which English law divides these cases. The onus

of establishing “that the Defendant cannot receive a fair trial” is much greater than that of establishing merely that there is a real risk

that the applicant would not receive a fair trial. I believe that the Irish test, and the Irish practice of dealing with these matters by

way of judicial review, is both more just and more realistic. In my decision in POC v. DPP [2000] 3 IR 87 I discussed the reasons, in the

context of a delay case:-

“If the case is to be tried at all, it must be tried on the evidence actually available and not on what the evidence might

have been many years earlier. But the prejudice of which the accused complains relates precisely to the distinction

between the two. If there is a real risk that he is prejudiced by this difference there is, I believe, a real risk of an unfair

trial. The very fact that some specific evidence might reasonably have been available and useful to the defence is the

most that can possibly be shown and it is this fact that demonstrates the fatuity of requiring ‘something overwhelming’ as

the Director suggests. Furthermore, the legal and practical impossibility of inviting a jury to speculate as to what the

evidence might have been eighteen or so years ago points to the absolute necessity for this Court to deal with the issue.

This is particularly so because of the grave difficulty. in devising any useful form of words suitable for addressing a jury as

to how the lapse of time should be taken into account in their deliberations. And even if a place of this sort were being

dealt with by a judge alone, how is he or she to consider a lapse of time? Would it be proper to acquit on the basis that

the trial judge was not confident that the Defendant would have had no better defence if the trial had been held fifteen

years previously”.

46. I believe that that passage is applicable to the present case, bearing in mind that one is dealing with a failure to seek out

evidence which, as a matter of probability, existed, rather than with a lengthy delay. In each case, it will normally be impossible to

prove conclusively that there would have been evidence available at an earlier date or that the missing video tape would have

assisted the Defendant. The real possibility that this is so is the most that can possibly be shown. Thus, I believe the “real risk” test

is much more realistic, and therefore more just, than the test suggested in Ebrahim, which is virtually impossible to meet.

47. I am extremely puzzled by the suggestion in Ebrahim that a case should be allowed to be proceed if there is “a sufficient credible

evidence apart from the missing evidence”. I am also unable to accept the suggestion that the absence of a video film or similar

evidence is often “likely to hamper the prosecution as much as the defence”.

48. The Defendant in this case is a drug addict. The evidence against him on this charge is a few lines of a written statement. It is

wholly uncorroborated.

49. In relation to such confessions Section 10 of the Criminal Procedure Act, 1993 provides:-

“(1) Where at the trial of a person on indictment evidence is given of a confession made by that person and that

evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration”.

50. This measure is described in Byrne and Binchy Annual Review of Irish Law, 1993 as “The legislative reaction to the fall out from

recent well publicised cases of miscarriages of justice, including the Guilford Four and the Birmingham Six cases in Britain and, in

Ireland the Nicky Kelly case”.

51. It is indisputable that certain cases where the sole evidence has been an alleged confession has given rise to justified concern. In

light of this, and of the statutory provision to which this concern has given rise, it is extraordinary that a very obvious means of

obtaining independent evidence was, as far as the evidence in this case goes, not availed of.

52. If this case could be disposed of along the lines suggested in Ebrahim it would be a full answer for the Director to say that the

case could be prosecuted in exclusive reliance on a confession; it would stand or fall on that evidence; and in any event the video

tape might have turned out to be completely unfavourable to the Defendant. On that basis, Braddish would have been decided in

favour of the Director. But the case would not be proceeding to trial at all unless the prosecution had enough evidence actually

available to amount to a prima facie case. And it is simply contrary to experience of criminal trials to postulate that the prosecution

are as much handicapped as the defence by the missing evidence. On the contrary, if the prosecution have a case they can stand up

on different evidence, for example an alleged confession, their case may actually be strengthened by the absence of a video tape. In

Braddish the prosecution had both types of evidence available to them and voluntarily decided to dispose of the video tape and rely

on the confession only. It is hard to see why that would have been done unless it were thought that their case would be damaged by

the video tape. Therefore, its absence would assist the prosecution.

53. At pages 838 - 840 of Ebrahim, the Divisional Court set out seven cases which had come before the English Courts and in which

video evidence was unavailable, or had become unavailable. In six of the seven cases a stay was refused and in the seventh, where

it had been granted by a Magistrate, the Division Court plainly disapproved and observed that “most courts would have refused the

stay”. This was a case where a person was charged with a serious assault outside a club. The incident took place in an area covered

at least in part by a video camera. The police decided the video footage was of no use, though they conceded it gave a good image

of peoples faces. In my opinion the attitude of the Divisional Court to that case amounts to giving carte blanche to the police to

decide whether or not the evidence is useful.

54. Another case, R v. Swingler (unreported 10th July, 1998) is most instructive. There was an alleged rape beside a bridge over a

railway line. Video cameras were mounted on the bridge: by the time the police discovered that they had been recording on the night

in question, the film had been destroyed. A stay was refused because “before there could be any successful allegation of an abuse of

process based on the disappearance of evidence, there had either to be an element of bad faith or at the very least some serious

fault on the part of the police. They also held that it was possible to have a fair trial”.

55. From this case and the other cited it is clear that the English authorities require either bad faith or an established impossibility of

a fair trial. In my view the seven examples given amply demonstrate that the English test is one which, properly applied, is almost

impossible to meet. It is extraordinarily favourable to the prosecution and positively encourages an omission to seek objective

photographic evidence if the prosecution feel they have a plausible confession or other evidence.

56. The “real risk of an unfair trial”, on the other hand, does not necessarily involve blaming any person. The main focus in these

applications should be on the fairness of the intended trial without the missing evidence, and not on whose fault it is that the

evidence is missing, and what the degree of that fault may be. The latter factors, however, are not always irrelevant.

57. I would also add that, in my view, parting with possession of a video tape, or failing to take possession of it in the first place, can

never be justified solely on the basis that a garda has formed the view that the tape is not helpful or is unlikely to be helpful. .

58. Furthermore, if, on the balance of probabilities, video evidence is likely to have been available I believe that there is an onus on

the Gardaí or the Director to give some explanation as to why it was not sought or obtained.

59. Before leaving this aspect of the case I would like to comment on a passage in Ebrahim at page 838 where it is envisaged that if

a trial continues despite missing evidence it does so “leaving the Defendant to seek to persuade the jury or magistrates not to

convict because evidence which might otherwise have been available was not before the Court through no fault of his”. I query

whether that, in itself, would be an appropriate basis for an acquittal. As mentioned above, if a trial is to proceed at all, it must

proceed on the evidence actually available. I do not follow how it is thought a court or jury can be invited to speculate on what

evidence which is not before it might have been, if only it had been obtained or preserved. It is an interesting exercise to attempt to

draft a portion of a hypothetical charge to a jury in which they are invited to consider acquitting on the basis of what evidence not

before them might have been. Unless the circumstances are such that it is possible to urge that the absence of the evidence shows

bad faith on the part of the investigators, I do not believe that it is possible to acquit on the basis of what the evidence might have

been. And if bad faith could be shown, presumably the Defendant would have had the proceedings stayed and thus would not have

needed to argue for an acquittal.

Another approach

60. I have the misfortune to differ in this case from Fennelly J. I would not wish to exaggerate the scope of this difference. Firstly, I

agree with him that any difference in our views of the facts of the matter is not particularly significant. Secondly, I wish to express

my emphatic agreement with him that “it is of the greatest importance that the Courts ensure that the police force behaves within

impeccable fairness in its handling of evidence.” On that all important issue of principle there is no difference at all. Thirdly, I agree

with his observation that the emphasised part of what I said in my judgment in Braddish is indeed obiter:-

“It is the duty of the Gardaí, arising from their unique investigative role, to seek out and preserve all evidence having a

bearing or potential bearing on the issue of guilt or innocence”.

61. I would, however, repeat that view in the present case, where of course it is central to the resolution of the issue, and not

obiter. It must of course be read in the context of the limiting statement also to be found in my judgment in Braddish:-

“It would be difficult to think of evidence more directly relevant, than a purported video tape showing the commission of

the crime. But in cases where the evidence is not of such direct and manifest relevance, the duty to preserve and

disclose it has to be interpreted in a fair and reasonable manner. It must be recalled that, in the words of Lynch J., the

duty to preserve evidence is to do so ‘so far as is necessary and practicable’. A duty so qualified cannot be precisely or

exhaustively defined in words of general application. Certainly, it cannot be interpreted as requiring the Gardaí to engage

in disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence.

The duty must be interpreted realistically on the facts of each case”.

62. In the absence of a limitation such as this, there might indeed be ground for apprehension that, as Fennelly J. expresses it “where

an accused person is in a position to show that the Gardaí have failed to seek evidence which would have had a potential bearing on

the innocence of the accused, that will suffice to meet the test of a real and serious risk to a fair trial”.

63. I do not think that this is so. The emphasis, which is quite explicit both in Braddish and in this judgment, on the need for the

obligation to seek out, and indeed to preserve, evidence to be reasonably interpreted requires, I hope, that no remote, theoretical or

fanciful possibility will lead to the prohibition of a trial. But we are not dealing with anything of that sort here. On the evidence in the

present case it is overwhelmingly likely that a video camera recorded the actual conduct of this robbery by its unmasked

perpetrators. In those circumstances it appears to be not a possibility or even a mere probability, but a near certainty, that the video

tape would indeed constitute evidence bearing vitally on the question of guilt or innocence.

64. I do not believe that to insist that such evidence be produced, or at least that some explanation be given for its non-production,

is to take a novel conceptual step. On the contrary, as I have indicated above, I believe that the substantive conceptual step

required was taken before the end of the Victorian era. It is true that, at that time, the emphasis was rather on the right of the

police to seize evidence than on their duty to do so, but they were seen as having such a duty in the judgment of Wright J., cited

above. This is because the right does not exist in a vacuum, but for a purpose. That purpose relates to the due administration of

justice. It follows from this that it must be exercised in an impartial manner and not for the sole advantage of one side, or recklessly.

I believe these conclusions follow inexorably from the judgment of Pallas CB, cited above. I do not believe that the long recognised

right and duty to make all reasonably obtainable evidence available in a criminal case is properly open to criticism on the basis that it

will open the floodgates to arguments based on potential relevance of a purely theoretical nature.

65. The near ubiquity of video cameras in urban settings is such that it demands the specific attention of the Courts if their

judgments are to be realistic in a contemporary setting. The innovation required is one of adaptation to new technology rather than

one of principle. For many years, in the cognate area of eye witness visual identification, it has been usual to seek the views of as

many eye witnesses able to identify or describe a person as possible. This done, the prosecution must either call all such witnesses,

whether they identify or describe the accused or not, or (at least on request) make the defence aware of the names and addresses,

and give the statements, of the unused witnesses. This is so even, and indeed especially, if their testimony contradicts the

description of the suspect given by those on whom the prosecution wish to rely.

66. There would be grave concern if a garda failed to note the names and addresses of such witnesses to a robbery, failed to

ascertain what they have to say, or failed to preserve statements unhelpful to the prosecution for the possible use of the defence. In

the age of video cameras, not to enquire whether a tape of the crime is available, not to take possession of it and not to preserve it

is the precise equivalent. An indistinct video may still be of use to a defendant, just an eye witness who does not identify the

Defendant may be.

67. To require that the same steps be taken by way of inquiry after, and preservation of, video tapes as witness testimony is not to

require anything new in principle or unreasonably onerous in terms of work or expense. And it must be recalled that while a witness

whose name or statement is not taken may, after all, be found by the defence, a video tape not taken for preservation will almost

certainly be wiped or recorded over in a very short time. It is thus impracticable in most cases for responsibility for the seeking and

finding of video tape evidence to rest anywhere but on the police.

68. I entirely agree with Fennelly J. that the UK code of practice, portions of which are set out in Ebrahim, may be appropriate to

describe the common law duties of a police force in relation to the obtaining of evidence. Like Fennelly J., I do not consider that a

trial should be prohibited merely because the police can be shown in a particular respect to have fallen short of the standards so

expressed. In the existing regulations, for example, governing the treatment of persons in custody it is expressly provided that

evidence shall not be excluded merely because of such a shortfall. But equally, if there is no power to prohibit a trial where the Gardaí

have apparently ignored the common law version of the same values, there will be no incentive to comply with them and the position

of the Courts will be a somewhat toothless one. I would prefer to assert a jurisdiction to prohibit a trial when there is a real risk that

it will not be a fair one on this ground, as on any other. The exercise of that jurisdiction must be careful and realistic. There is also a

responsibility on a Defendant’s advisers, with their special knowledge and information, to request material thought by them to be

relevant.

The U.S. Authorities.

69. Because we were not referred to these authorities I have not in any way grounded my conclusion on them. But they are of

considerable interest and might usefully be referred to in a future case. Both State and Federal Courts have addressed the problems

of loss of evidence and of evidence not sought with what can only be described as considerable intensity. The United States Supreme

Court has pronounced in favour of a test very similar to that favoured by the United Kingdom judges in Ebrahim. It represents a

considerable change in previous U.S. jurisprudence and, according to an academic authority has led to a “ongoing revolution by

States against the standard set forth by the United State Supreme Court”, apparently on the basis that they were entitled to adopt

a more ample protection for their citizens than the minimum required by the Supreme Court, or that State Constitutions mandate a

different standard of protection.

70. The traditional United States approach was expressed in U.S. v. Loud Halk [1979, 9th Circuit Court of Appeals] 628 F. 2d 1139

where the test was expressed as follows:-

“The proper balance is that between the quality of the Government’s conduct and the degree of prejudice to the

accused. The Government bears the burden of justifying its conduct and the defendant bears the burden of

demonstrating prejudice”.

71. This unsurprisingly, is described in later cases and in academic literature as the “balancing test”. However, it was overruled in

Arizona v. Youngblood [1988] 488 U.S. 51. Here, there was a thorough going failure properly to pursue the scientific aspect of the

investigation of an alleged sexual assault on a young boy. Chief Justice Rehnquist, speaking for himself and four others, said that:-

“We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve

potentially useful evidence does not constitute denial of due process of law”.

72. The reason given by the majority for the requirement of bad faith is stated as follows:-

“We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s

obligation to preserve evidence to reasonable bounds and confines it to that class of case where the interest of justice

most clearly require it, i.e. those cases in which the police themselves by their conduct indicate that the evidence could

form a basis for exonerating the defendant.”

73. One justice, Justice Stevens, concurred in the result but not in the opinion. He said:-

“In my opinion, there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in

which the loss or destruction of evidence is nonetheless so critical to the defence as to make a criminal trial

fundamentally unfair. This however is not such a case”.

74. Justice Blackmun dissented in a judgment with which Justice Brennan and Justice Marshall agreed. Their dissent commends itself

to me as a proper statement of the principles involved, in combination with the decision in Loud Halk, cited above.

75. They said that the majority had taken “a radical step” in the futile pursuit of a “bright-line rule”. They held that:-

“The Constitution requires that criminal defendants be provided with a fair trial, not merely a ‘good faith’ try at a fair trial.

The respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present

a full defence. That ineptitude, however, deprived the respondent of his guaranteed right to due process of law”.

76. The minority pointed out that the Chief Justice’s decision would restrain a trial in the single circumstance where “police action

affirmatively aimed at cheating the process violates the Constitution. But to suggest that this is the only way in which the due

process clause can be violated cannot be correct. Regardless of intent or lack thereof, police action that results in a defendant

receiving an unfair trial constitutes a deprivation of due process”. (Emphasis added).

77. Later they observed:-

“It makes no sense to ignore the fact that a defendant has been denied a fair trial because the State allowed evidence

that was material to the defence to deteriorate beyond the point of usefulness, simply because the police were inept

rather than malicious the importance of these types of evidence is indisputable and requiring police to recognise their

importance is not unreasonable”.

78. The entire controversy is surveyed in Dinger:- “Should lost evidence mean a lost chance to prosecute? State rejections of the

U.S. Supreme Court decision in Youngblood”. (27 American Journal of Criminal Law 329) (Summer 2000).

79. It is this author who claims that there is an “ongoing revolution by States” against the decision just summarised. I do not propose

to cite the article other than to remark that it analyses the jurisprudence of numerous State Courts and considers the issues of

principle involved from every conceivable point of view. I have no doubt that our jurisprudence could benefit from exposure to the

thorough and earnest, not to say fraught, treatment of the topic in the United States Courts.

Discretion.

80. It follows from the foregoing that, in my view, the appellant has a strong case for the relief he seeks. But we are invited to

exercise our discretion against granting the relief, on the basis of delay in seeking it.

81. The learned High Court judge held that the applicant had been guilty of excessive delay. He measured the delay from the date of

the offence, 16th January, 1998 to the date of the first request for the tape, 29th January, 1999.

82. It is not possible to lay any down any hard and fast rule as to what level of delay is excessive in seeking relief of this sort. But,

unless there is something extraordinary in the case, I do not think it is proper to measure the delay from the date of the offence.

Unless one assumes that the defendant is guilty of what he is charged with, so that he is fully aware of the details of the crime,

there does not appear to be any basis for taking this date as the commencement of any “delay” to be attributed to him. In the

present case, the defendant was not charged with this offence until the 11th August, 1998, more than seven months after the date

of the offence. There does not appear to be anything on the facts of the case which would have led him to inquire about the

existence or otherwise of video tapes in the intervening period.

83. After being charged with the offence, the defendant was served with the Book of Evidence on the 10th November, 1998. The only

evidence relied on in the Book was the alleged confession. He was returned for trial to the Circuit Criminal Court where he was

arraigned on the 16th December and a trial date fixed for the 28th January, 1999.

84. It appears that on the 28th January his solicitor obtained an adjournment in order to allow for investigation of a different video

tape, relating to a different charge. On the following day he wrote to the Chief State Solicitor asking for a copy of video recordings in

relation to the premises to which this charge relates. It would appear, from the sequence of events, that the solicitor was moved to

inquire about video tapes in this case because of their relevance in another matter with which his client was charged. We are not

aware of the role played by video tapes in the other case.

85. In those circumstances it would seem to me to be harsh to disqualify the applicant from relief to which he was otherwise entitled

on the grounds of delay. He is, I think, entitled to have it assumed in his favour that he knew nothing of a robbery at the Parkway

Filling Station until he was charged with it on the 11th August, 1998. There is nothing to show that he should have been alerted to

the possible presence of a video at any particular time thereafter. It is true that an alert person might infer from the increasing

presence of video tapes in business premises generally that there might well be one in any filling station, and thus be led to check

into the question. But since, on the evidence, it is far from clear that the Gardaí who actually attended at the scene paid any

attention to the possibility of there being a video, it would be harsh to say that the defendant should have done so. It must also be

said that the Director did not put this point in the forefront of his arguments on the hearing of the appeal, but emphasised instead the

distinctions from Braddish’s case.

86. In all the circumstances I would grant an Order prohibiting the respondent from proceeding further with the prosecution of the

applicant on the charge relating to the Parkway Filling Station.