The High Court prohibited the trial of Edward Keogh on a firearms charge, finding that potentially important CCTV footage had probably been available but was not sought in time. Mr Justice Birmingham delivered the judgment on 17 November 2009 in a judicial review proceeding.
Keogh was charged before the Dublin Circuit Criminal Court with possessing a double-barrel shotgun and two cartridges in suspicious circumstances. The alleged offence was on 13 December 2007 in a laneway behind the Black Forge Inn, Dublin 12. The charge was denied; the judgment says Keogh repeatedly denied having the black bag in which the firearm was found.
Gardaí had initially been called to reports of three men acting suspiciously on bikes at the rear of Elenora’s pub. At the scene, one motorcyclist crashed and was arrested; the other two men escaped. A Garda said she had seen what she believed was a black bag under the arrested man’s arm. Another Garda found a large black bag near where he had fallen, containing a sawn-off shotgun.
Keogh’s solicitors wrote to Gardaí on 21 December 2007, eight days after the arrest, saying he believed CCTV footage could assist his defence and asking that it be found and preserved. Footage was sought from nearby premises, but the bank footage was irrelevant and the Black Forge Inn cameras did not cover the relevant area. Elenora’s had cameras covering parts of the laneway, although neither covered the arrest location. A pub owner initially said one camera’s footage could not be viewed because of glare and the system’s limitations. Later, sample footage proved better quality than expected; the bar manager said he had worked out how to retrieve it and that daylight glare would not have affected the camera. By then, the footage from the incident date was no longer available.
The judge considered whether the missing material was likely to have been relevant and whether its absence created a real risk of an unfair trial that could not be avoided through a trial judge’s rulings or directions. He found it reasonable to expect Gardaí to seek footage from Elenora’s promptly, given the original report concerned suspicious activity there and CCTV was not retained indefinitely.
Birmingham J said there was a reasonable probability that the activity would have been captured and that footage could likely have shown which of the three men, if any, had the bag. It could have significantly helped either the prosecution or the defence. With that objective evidence lost, the case would instead depend on one Garda’s testimony about seeing the bag. The court held that this was one of the rare cases in which the trial should be prohibited. The judgment records the prohibition; it does not determine whether Keogh committed the offence.