The High Court has ruled that video footage recorded to monitor a hedge did not breach the constitutional privacy rights of an accused man, where the camera also captured the visible front of his home. The court found the footage was not obtained unlawfully. It did not decide whether the footage was admissible at trial, because the question of admissibility did not arise once the court found no breach or unlawfulness.
The ruling came in a consultative case stated by a District Court judge, rather than an appeal from that judge’s decision. The question concerned a prosecution alleging that Richard Atherton damaged mature hedging plants belonging to his neighbour, Colm Hughes, at 12 Island View, Malahide, on 19 May 2003. The judgment records the charge as an allegation; it does not determine whether the accused damaged the hedge.
The District Court was told that Hughes arranged for a fixed camera in an upstairs window across the road to record continuously. The camera showed the hedge and the front of the accused’s adjoining home, including the front door, driveway and garden. A Garda said about 70% of the frame showed the house. The footage could also show inside through the open front door or uncovered windows. The Garda said everything visible could be seen from the street, although a step-ladder might be needed.
For the accused, counsel argued that the surveillance intruded on the privacy and inviolability of his dwelling under Article 40.5 of the Constitution, and that evidence obtained through a constitutional breach should be excluded. The Director of Public Prosecutions’ counsel argued that the filming was aimed at the complainant’s hedge, that the view of the house was incidental, and that the footage did not result from any invasion of the accused’s rights.
Justice Michael Peart held that filming what was visible from the public road or the upstairs window across the road did not amount to an unconstitutional invasion of privacy in the circumstances. He said the camera did no more than a person observing from that window could have done. He noted that a different view might arise if setting up the camera involved trespass on the observed person’s property; there was no such trespass in this case.
The judge answered that the surveillance evidence did not breach the accused’s constitutional rights and was not obtained unlawfully. He therefore said the third question—whether evidence obtained in breach could be admitted—did not arise. He also said the Law Reform Commission report cited in submissions was not persuasive in deciding the case.