The Supreme Court dismissed an appeal by the Director of Public Prosecutions and affirmed a High Court order prohibiting the trial of a man charged with stealing a leather jacket from a Lidl supermarket in Ballinasloe. The appeal concerned the risk to trial fairness after the original CCTV footage was destroyed.
The judgment, delivered by Mr Justice Fennelly on 24 February 2009, said the alleged incident took place at the store on 30 September 2005, shortly after 6.30pm. A security guard suspected two people in the shop, including a man described as being in his forties or fifties. The guard later said he saw CCTV footage showing the older man put on a leather jacket beneath his top. The store manager said he saw a jacket on the front passenger seat of a black car outside. The judgment said the man made no admissions, and the jacket was not taken into the store’s possession.
Gardaí watched the footage at the store but could not take the CCTV system’s hard disk. At their request, the manager supplied a computer disk containing five still photographs rather than a copy of the moving footage. The original footage was routinely destroyed after 30 days. The accused’s solicitor sought a copy between February and April 2006 and was told in May that the footage had been destroyed.
The DPP did not dispute the basis on which the judicial review had been brought, and did not contest that gardaí should have sought the original footage. The Supreme Court said it was not deciding that issue. The argument before it was limited to whether the accused had shown a real risk that, without access to the footage, he could not receive a fair trial.
The court said identification from the CCTV was central to the prosecution case. The expected evidence was that two store witnesses and a garda had identified the accused by watching the footage, rather than through unaided observation. The five still photographs did not realistically allow an observer to conclude that the jacket had been concealed under the man’s outer garment, the key allegation.
The court held that, in these particular circumstances, the defence could not test the state witnesses’ identification evidence and there was a real risk to trial fairness. It did not rule in advance on whether the prosecution’s proposed identification evidence would be admissible, or hold that still photographs from missing video are generally inadmissible. It dismissed the DPP’s appeal and affirmed the High Court order prohibiting the trial.