The High Court has refused an application to stop the prosecution of Jason English on two alleged arson charges, finding that the loss of CCTV footage had not been shown to make a fair trial impossible.
Mr English was charged with criminal damage over two fires in Waterford in the early hours of 14 August 2003: one at a shutter attached to Ryan’s Bar, also known as Noddy’s Bar, in Ballybeg, and another at a dwelling at 170 Clonard Park. The judgment said both fires were quickly extinguished and caused relatively minor damage.
The prosecution case included a statement Mr English made after his arrest in November 2003, which the judge described as a full confession to both alleged offences. Mr English denied involvement at first, then made the statement after a caution. The interview was videotaped, and that recording remained available.
A separate videotape showing the bar fire was disclosed as missing in January 2008. The judge found that it was important evidence which Gardaí should have preserved, and that its loss breached the respondent’s duty. The footage had been kept in an investigating garda’s personal locker and was lost. The judge criticised the lack of secure evidence-storage facilities in Garda stations.
Mr English argued that without the footage he could not meaningfully challenge the basis for his arrest or the admissibility of his statement. He also said its absence would disadvantage his defence before a jury. He raised delay in serving the summonses, issued in 2004 and reissued several times before being served in January 2007, and argued that his proposed alibi witness, CoCo Mitchell, was no longer fit to testify.
The Director of Public Prosecutions argued that the confession and the available recording of the interview were significant, that the application to obtain the missing footage had come late, and that there was no evidence linking the delay to Ms Mitchell’s ability to give evidence.
The judge accepted that the missing footage was relevant to a possible challenge to the lawfulness of the arrest and to the defence at trial. However, three people who had viewed it could give evidence about its contents: Garda Eugene O’Neill, bar owner Eugene Ryan and Matthew Kenny. Their accounts differed: O’Neill said the person in the footage could not be identified; Ryan described the person’s clothing; and Kenny identified Mr English.
The court concluded that Mr English could challenge the admissibility of his statement without material prejudice. If the statement were excluded, the judge was also not satisfied that the missing footage meant he could not receive a fair trial, taking account of the witnesses’ evidence and the warnings available to the jury about identification evidence. The High Court therefore refused the relief sought. It did not decide whether the statement would be admissible at trial or whether Mr English was guilty.