The Supreme Court dismissed Michael Scully’s appeal against the refusal of judicial review relief that would have stopped his prosecution, finding that his challenge over unavailable CCTV footage was brought too late and rested on a theoretical possibility of exculpatory evidence.
Scully was charged in May 2002 with unlawfully seizing a motor vehicle and producing an article capable of inflicting serious injury during the seizure. The alleged incident took place at a filling station in Drogheda in December 2000, where the station owner was struck with a hammer. The prosecution case included an alleged inculpatory statement. Earlier interview statements and a written statement by Scully were exculpatory, the judgment said.
In December 2002, Scully’s solicitor asked gardaí for a copy of CCTV footage. A superintendent replied that the footage had not covered the forecourt area where the robbery took place, was of poor quality and had no evidential value; gardaí had not retained it. Scully then sought judicial review, arguing there was a reasonable possibility the recording could have helped exculpate him and that its non-preservation breached the State’s obligations and his right to a fair trial.
Additional statements served after leave was granted clarified that the surveillance system in place at the time of the incident was different from the upgraded system later shown in photographs. The station owner said the earlier cameras did not cover the area where his van was parked and were ineffective in darkness. He and gardaí had watched the footage and could see nothing of the incident; he could not see himself leaving the shop. The judgment said the account was unchallenged and corroborated the explanation for the footage’s lack of relevance.
The High Court refused relief in November 2003, citing delay. On appeal, Mr Justice Hardiman said the delay was about nine months from charge and a little over four months from service of the Book of Evidence, rather than the longer period the trial judge had calculated. He nevertheless agreed that the application, made on the eve of trial, was excessively late in context. Scully had waited about seven months after charge to ask about CCTV, and the judgment said he continued after the new evidence undermined the assumption that the later camera system had existed at the time.
The Supreme Court stressed that gardaí should preserve video evidence rather than discard it merely because an officer considers it useless. But in this case, the uncontroverted evidence showed the footage had no value, and the claimed prospect of exculpation was remote and theoretical. The court dismissed the appeal and affirmed the High Court order. It did not prohibit the prosecution.