The Supreme Court of Ireland handed down judgment in the case of Byrne v DPP [2010] IESC 54 on the 17th November 2010. The application for judicial review concerned the possible prohibition of a criminal trial on the basis of unavailability of CCTV evidence.

The applicant had been arrested, and was subsequently charged with assault under s. 2 of the Non Fatal Offences Against the Person Act, 1997 and criminal damage contrary to s.2 of the Criminal Damage Act, 1991 following an incident in a convenience store. Still images from a CCTV camera were provided to the police. Jurisdiction was accepted by the District Court. The solicitors for the applicant requested copies of any evidence including, relying on Braddish v DPP [2001] 3 IR 127, video evidence which had been taken from the store. Provided with the still images, a later request for the actual video by the solicitors was met by a letter from the gardai on 10th February 2010, stating the footage was no longer stored on the store’s hard drive and was therefore not available.

The Supreme Court was asked to consider whether the trial should be prohibited on the grounds that the gardai had failed to secure relevant information, focusing on the extent of the duty of the gardai to seek and preserve evidence.

Outlining relevant case law in the area, the court drew on the principle propounded in Braddish v DPP [2001] 3 IR 127 that each case in this area be determined on its own facts. Examining the later case of Mitchell [2000] 2 ILRM 396, prosecution was here not prohibited because it could not be said there was an obligation to seek and retain CCTV footage following every incident. Further, in the case of Scully [2005] 1 IR 242, where the gardai had viewed CCTV evidence and concluded they did not hold evidential value, a prohibition application was rejected on grounds of undue delay and the failure to establish a real risk of unfair trial rather than a mere possibility.

Referring to cases where applications for prohibition had succeeded, including the recent case of McHugh v Director of Public Prosecutions [2009] IESC 15, the court found a pattern that outside straight forward cases such as Braddish, something exceptional would be needed in order to prohibit a trial. Applying the principles set out in the case of Savage v Director of Public Prosecutions [2009] 1 IR 185, that a real risk of unfair trial must necessarily be demonstrated, the court held that the alleged missing evidence was not central to the case being prosecuted. Witness evidence and the applicant being arrested at the scene provided strong evidence; the lack of CCTV evidence did not evidently aid the applicant’s case.

Dismissing the application, the court considered that an application for dismissal of summary trial could have been preferable to an application for judicial review before the High Court.