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1. I have had the advantage of reading in draft form the judgments about to be delivered by Mr Justice Hardiman and Mr Justice Fennelly. Both judgments extensively review the facts of this case and the applicable law. I do not consider that I have anything relevant to add either in regard to the facts or in regard to the law. I shall therefore confine myself to a few brief remarks regarding the conclusions to be drawn in this case.

2. In his judgment Hardiman J. refers to and relies on what he rightly describes as “the main point of principle” in his earlier judgment (with which Denham J. and Geoghegan J. agreed) in Braddish v DPP (Supreme Court, unreported 18th May 2001) . In that judgment he stated:-

3. In the instant case the Applicant, Mr Dunne, is charged with the robbery of a sum of money from the Parkway Filling Station in Palmerstown on the 18th January 1998. The evidence of Mr Torley, the owner of the filling station, is that the various areas of the filling station were all covered by video camera surveillance. On previous occasions relevant video tapes from the filling station had been acquired by the Gardai in the course of other investigations. Mr Torley, however, cannot recall whether the Gardai either requested or obtained the video tapes covering the period of the robbery on the 18th January 1998. He is, however, certain that the video cameras were operative on that date.

4. The evidence of Detective Garda Denis Kenny, who is the officer in charge of the investigation but who was not present at the filling station on the night of the robbery is that no video tape of the events that occurred at the Parkway Filling Station was given to or obtained by any member of the Garda Siochana. This evidence is uncontradicted. No affidavit was sworn by the Garda or Gardai who actually attended at the scene of the robbery.

5. Since there is no evidence that the video tapes in question were ever in the possession of the Garda Siochana, there can be no question of a failure to preserve that evidence, as there was in the Braddish case or, for example, in Murphy v DPP [1989] ILRM 71. The decision of this Court turns, therefore, on whether the further prosecution of the Appellant should be prohibited on the ground that the Garda Siochana failed in their duty to “seek out” evidence which had “a bearing or potential bearing on the issue of guilt or innocence” .

6. In his judgment Fennelly J. expresses the view that to impose on the Gardai such a duty to seek out evidence represents a “very significant new step in the law” . He envisages a danger that “there will develop a tendency to shift the focus of criminal prosecution on to the adequacy of the police investigation rather than the guilt or innocence of the accused” and that trials will be prohibited wherever a Court can be persuaded that the Gardai have failed to seek out any identifiable evidence which might even possibly tend to exonerate the accused. It seems to me that Fennelly J’s anxieties in this regard are reasonable and that such dangers do exist. It is essential that a duty on the part of the Gardai to seek out relevant evidence should not be too widely interpreted. As was stated by Hardiman J. in Braddish v DPP , such a duty “cannot be interpreted as requiring the Gardai to engage in a disproportionate commitment of manpower or resources in an exhaustive search for every conceivable kind of evidence. The duty must be interpreted realistically on the facts of each case.”

7. Where a Court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.

8. On the facts of the present case, and bearing in mind in particular that the only other evidence against the Appellant is a brief inculpatory statement, I agree with the reasoning and conclusions of Hardiman J. I would allow the appeal and grant an order prohibiting the Respondent from proceeding further with the prosecution of the Appellant on the charge relating to the Parkway Filling Station.

9. I would add that the questions raised in this case as to the duty of the police to seek out evidence and as to the limits of that duty are extremely important in the context of the investigation of crime and the prosecution of offenders. It is to be hoped that these issues will arise again in a future case where they may be considered by a full Court. In the meantime I would limit my decision to the facts of the instant case.

10. We are long habituated to the idea that technology and science can snare the criminal. From the familiar photograph and fingerprint to the microscopic fragment of hair or tissue, the role of their products in detection and the proof of guilt has entered into the public consciousness. The work of the criminalist, the SOCO, chemist, the photographer, above all the DNA expert, are firmly established. The law itself has changed to accommodate them. A suspect may be fingerprinted, photographed, compelled to give up his clothing and possessions for testing and to supply samples of his hair, tissue or bodily

11. None of this is controversial. If science or technology can provide certainty in matters of great importance which would otherwise be determined on human testimony which may be fallible or worse, who but a guilty man would not willingly invoke its aid? On this theory both individuals on whom suspicion has fallen (mandatorily) and whole populations (voluntarily) have been submitted to scientific and technological tests. The balance has long been struck in favour of the use of technology in the search for the perpetrators of crime, even when the processes involved are minimally invasive or transiently painful or undignified for innocent people. The greater good prevails.

12. This development is due in large measure to the development of techniques of previously unimagined sophistication, from the telephoto lens and the video camera to the extraordinary precision of DNA analysis. Additionally, and at much the same time, our faith in some older techniques has been undermined. From visual identification to alleged confessions, the last three decades have provided excellent reason for avoiding over reliance on them.

13. This case does not challenge any of these developments. It seeks to take them further. It raises the question, is it open to the authorities on whom such wide powers and resources have been conferred by law or by technology, to decide in a particular case, that they will not use them? Alternatively, if for no stated reason the authorities simply do not avail of some technical assistance in the detection of crime, which might have inculpated or exculpated the suspect, is this relevant to their ability to prosecute him using evidence of a more traditional sort?

14. Video cameras are now a prominent part of the street furniture of our towns and cities, including some housing estates, and of the equipment of business premises. Their role in the prevention and detection of crime is obvious and well publicised. The Gardaí regularly appeal for assistance on the “Crimeline” programme by showing video tapes of robberies. Witnesses are asked to view video footage. Notorious crimes such as the murder of the late Jamie Bulger were solved in large part by inspecting video film from dozens of retail outlets. Even when a video film does not allow positive identification of an individual it may allow an expert to gauge the height and build of a person shown, so as to put one sort of suspect within the net of suspicion, and thereby exculpate another sort. Recent weeks have seen the allocation of millions of Euro of public money to provide video coverage of the public areas of large provincial towns, and an expansion of the existing video coverage in the capital. Shops routinely display notices to the effect that the premises are covered by video cameras “for your protection and for the detection of crime”. In particular, premises which stay open late at night and specifically Filling Stations and the shops often associated with them, are obviously and routinely subject to video surveillance.

15. Video evidence, accordingly, can have very dramatic effect in appropriate cases. If the film is clear, it approximates to having a good eye witness. Unlike human witnesses, however, what the camera sees can be played over and over again and consistencies or inconsistencies with other evidence noted. Even an unclear image can permit the exclusion of a particular person. In my judgment in Braddish v. DPP (Supreme Court unreported 18th May, 2001) I said:-

16. Despite this, it has often been the experience of those concerned with the defence of criminal cases, and with civil litigation, that when video evidence is sought from public or private sources it is unavailable either due to alleged malfunction of the equipment or, more commonly, because it has been “wiped”. The unavailability of video evidence may not be, and in the majority of cases is not, sinister in the sense of suggesting deliberate destruction. The Defendant in a criminal case may not (as in Braddish) have been arrested for some months after the crime and may not have been charged until many more months have elapsed. At least until arrest, and probably until after a charge has been preferred, it is difficult to see that the eventual Defendant would have had any right to require the procurement of evidence. The prosecution rarely suffer this particular disadvantage: they are first on the scene and usually in a position to ascertain whether there is a video camera and to take possession of the tape before it is “wiped”.

17. Precisely because video footage may be definitive of guilt or innocence its absence will be bitterly regretted by an innocent Defendant and a guilty one will ape the same sentiment.

18. The Court has not been referred to any statute or regulation relating specifically to video evidence. Nor is there any statutory or regulatory rules in relation to the obtaining and preservation of evidence generally. The matter has been left to the Courts. In my judgment in Braddish I cited with approval the statement of Lynch J. in Murphy v. DPP [1989] ILRM 71 where, having surveyed the authorities, the learned judge said:-

19. In arriving at this conclusion Lynch J. had surveyed a number of early authorities including the judgment of Pallas C.B. in Dillon v. O’Brien and Davis [1897] 20 LR IR 300. There, the learned Chief Baron had said:-

20. Accordingly, the power to seize goods of evidential significance is based in the interest of the State itself, and that interest is described as an interest “in the person charged being brought to trial in due course....”. (Emphasis added) The right to seize or “capture” such items exists in order to prevent their destruction, which is a manifest risk in the case of a video tape. The learned Chief Baron also spoke in terms of a “right to production...... of this evidence”, which can scarcely be understood as a right existing in one party only. Very significantly the right is to the production of evidence of innocence as well as guilt.

21. A few years earlier, the Queen’s Bench Division in England had taken a view similar to that of Pallas CB. In R. v. Lushington , ex parte Otto [1894] I QB 420 the Defendant had sold goods to Mr. Otto. He was subsequently arrested on foot of an extradition warrant alleging the theft of the same goods in France. His extradition was ordered and Otto sought an order for the return of the goods to him. He was unsuccessful. Wright J. said:-

22. In my view, the existence of these Victorian cases is sufficient to demonstrate that the approach taken by this Court in Braddish and in this case, is by no means a novel one. Dillon v. O’Brien was cited with respect in Chic Fashions (West Wales) Limited v. Jones [1968] I AER 229 and Ghani v. Jones [1969] 3 AER 1700. These cases are the leading modern English authorities on the common law power to seize items which may be of evidential use. It appears, in particular from the five criteria for such seizures at page 1705 of the latter case that material in the possession of an entirely and obviously innocent third party may nevertheless be seized for evidential purposes at least where the owner’s conduct in refusing to make it available “is quite unreasonable”. In all the cases, this right to seize is the corollary of a duty to make available all relevant evidence in criminal proceedings, where it indicates the guilt or the innocence of the person charged or suspected.

23. Later in the judgment, having further considered this duty, the following passage occurs:-

24. In one of the cases cited to us on hearing of this appeal, Ebrahim v. Felthan Magistrates [2001] 1 AER 831, a divisional court of the Queen’s Bench Division in England considered two cases where video evidence had ceased to be available. At page 834 - 836 of the report the Court discussed the “1997 Code of Practice and the Attorney General’s new guidelines” which apply in that jurisdiction. This suggests an approach not dissimilar in principle to that which this Court supported in Braddish. Firstly, the Divisional Court observed that:-

25. Paragraph 3.4 of the Code provides that:-

26. There is also provision for obtaining of possible material evidence which is in the possession of third parties, and, at paragraph 20, to the effect that in resolving the question of whether particular material should be obtained and disclosed, any doubt should be resolved in favour of doing so.

27. According to the report in Ebrahim, these guidelines are said to “preserve and amplify common law rules”. While I have not had the opportunity of reading the guidelines any further than they appear in the report, that statement appears to be true. From one of the cases cited later in the report, it also appears that, at least in some police districts in the United Kingdom, constables’ notebooks include a common form for taking particulars of alleged crimes, which features a box to be ticked as to whether there is, or is not, a possibility of video evidence.

28. It appears to me that, both in relation to video evidence and more generally, there is a good deal to be said for adopting guidelines of the sort referred to in Ebrahim.

29. In general, I agree with the statement of the facts of this case in the judgment about to be delivered by Mr. Justice Fennelly. It seems particularly important that there was a video system in operation on the premises allegedly robbed, consisting of a number of cameras covering the forecourt, the inside of the shop and the till area including the security hatch. The owner also said that there was a standard procedure in the event of a robbery: the Gardaí would be notified and they would arrive and view the video. The tape would then be given to the Gardaí. The owner was certain that the video system was in operation at the time of the robbery and was “likely to have captured the events immediately prior to and subsequent to same, including the culprits moving to and from the said hatch area”.

30. Unfortunately, the premises in question have been the subject of so many robberies that the owner could not recall this particular one specifically but he said that the same procedure was usually followed and that the Gardaí were fully aware of the video surveillance system and had taken away video tapes in respect of less serious events.

31. On this basis there is ample support for the learned trial judge’s finding that it was more likely than not that the Gardaí were given the video tapes. This, however, is hard to reconcile with the evidence of Detective Garda Kenny that the video “was never given to or obtained by any member of the Garda Síochána connected with the investigation of this case or otherwise”.

32. The Garda who made this averment did not attend at the filling station on the night of the robbery. A suggestion in the course of the hearing of this appeal that it might be adjourned to allow evidence from the Guards who did attend to be obtained was not availed of by the respondent.

33. It seems to me that the video tape is certainly relevant material on a common sense basis and is also relevant within the meaning of the U.K. guidelines quoted above. It is plainly capable of “having a bearing or potential bearing on the issue of guilt or innocence” to use the form of words employed in Braddish. Having regard to the uncontradicted evidence to the effect that the video surveillance system existed, it appears to me that the phrase “all reasonable lines of inquiry” would include a simple question to the staff of the filling station as to whether the video surveillance systems was in operation and a request to be given the tape if it was. On the basis of the past history of the Garda dealings with the premises there seems no room for doubt that such a request would have been successful.

34. It is perfectly true, as Mr. Justice Fennelly points out, that the facts of this case are distinguishable from those of Braddish. There, the video tape had undoubtedly been in the possession of the Gardaí and used by them. They had voluntarily parted with possession of the tape, leading directly to its non-availability. Here, there is no positive proof that the Gardaí ever had the tape. It may not be necessary to follow the learned trial judge in holding that they probably did obtain it: in any event it is clear that they could have done so.

35. I repeat the main point of principle in Braddish:-

36. It does not appear to me that the undoubted distinctions which exist between the facts of the two cases are relevant in applying that statement of principle.

37. The matter is not concluded even if one accepts the uncontradicted statement in the respondent’s affidavit that the video was never given too or obtained by any member of the Garda Síochána. Why was that? It is clear that it would have been reasonable for any guard attending the scene to have inquired about the video. It is not averred that this took place. If it did take place, no explanation has been offered as to why they did not obtain a tape. Since the duty of the Gardaí extends to “seeking out” as well as “preserving” evidence, the distinction of the facts here from those of Braddish does not appear to me to address the central issue.

38. The learned trial judge quite correctly pointed out that there were possible innocent explanations: the equipment might not have been working, the tape might have been accidentally erased or lost. But if any of these contingencies had actually arisen one would have expected the facts to be placed on affidavit. I observed in the course of the hearing that there appeared to me to be an element of gamesmanship in the affidavits sworn on behalf of the respondent. He says in effect:

39. If the duty of the Gardaí were limited to preserving evidence which actually comes into their hands the respondent would be entitled to win on this argument. But since their duty extends also to taking reasonable steps to seek out material evidence, I do not believe that these averments go far enough. Indeed, if these averments were sufficient it would constitute a positive incentive to investigators not to seize or request permission to take evidence which might contradict their suspicions or undermine the reliability of other evidence.

40. Counsel for the respondent urged on us that, even if we found his evidence inadequate or unsatisfactory, we should follow the approach of the Divisional Court of Queen’s Bench. This, he said, involved attributing the case to one of the two categories set out at page 836ff of the report.

41. This case suggests that a court may stay proceedings - and the learned judges are speaking of a trial court - (i) in cases where the Court concludes that the Defendant cannot receive a fair trial and (ii) in cases where it concludes that it would be unfair for the Defendant to be tried. The first type of case, in the view of the English Court, is “few and far between” . In relation to the second type of case - which English law envisages as showing a lack of “good faith or........ the prosecutors having been guilty of such serious misbehaviour they should not be allowed to benefit from it to the Defendant’s detriment” - it is “hoped” to be very rare. The Divisional Court stressed that the first category of case would be few and far between because:-

42. I do not believe that the decision of the English Court in Ebrahim correctly expresses the principles to be applied in this jurisdiction.

43. Firstly, it must be noted that there is a major procedural difference between the two jurisdictions. It appears that in the United Kingdom the usual procedure in cases such as this is to apply to the Court of trial to stay the proceedings in the exercise of its inherent jurisdiction. This is on the basis that “the Courts retain an inherent jurisdiction to restrain what they perceive to be an abuse of their process...... this residual and discretionary power in any court to stay criminal proceedings as an abuse of its process is one which ought only to be employed in exceptional circumstances, whatever the reasons submitted for invoking it”. (Ebrahim page 836).

44. This decision, however, was successfully appealed to the Supreme Court. The judgment is that of Finlay C.J. with which Walsh, Henchy, Griffin and McCarthy JJ agreed. He said:-

45. It may be noted that in this country as in England the principal single ground on which it is sought to interfere with criminal trials going ahead is that of delay. But there seems to be no reason why the same principle should not apply where it is sought to prevent a trial proceeding for other reason. Accordingly it seems that the appropriate course, at least in the case of a proposed trial on indictment, is an application for judicial review. Nolan v. DPP [1994] 3 IR 626 was a case involving a trial in the District Court to which, it appears, different procedures may apply.

46. I believe there is only one test to be applied on such an application. It is that deriving from the judgment of Denham J. in B v. DPP [1997] 3 IR 140, at 196:-

47. This is very similar to Finlay C.J’s formulation which speaks of events which “prejudice his chances of obtaining a fair trial”.

48. This is a very different test to that applicable under either of the sub-heads into which English law divides these cases. The onus of establishing “that the Defendant cannot receive a fair trial” is much greater than that of establishing merely that there is a real risk that the applicant would not receive a fair trial. I believe that the Irish test, and the Irish practice of dealing with these matters by way of judicial review, is both more just and more realistic. In my decision in POC v. DPP [2000] 3 IR 87 I discussed the reasons, in the context of a delay case:-

49. I believe that that passage is applicable to the present case, bearing in mind that one is dealing with a failure to seek out evidence which, as a matter of probability, existed, rather than with a lengthy delay. In each case, it will normally be impossible to prove conclusively that there would have been evidence available at an earlier date or that the missing video tape would have assisted the Defendant. The real possibility that this is so is the most that can possibly be shown. Thus, I believe the “real risk” test is much more realistic, and therefore more just, than the test suggested in Ebrahim, which is virtually impossible to meet.

50. I am extremely puzzled by the suggestion in Ebrahim that a case should be allowed to be proceed if there is “a sufficient credible evidence apart from the missing evidence” . I am also unable to accept the suggestion that the absence of a video film or similar evidence is often “likely to hamper the prosecution as much as the defence” .

51. The Defendant in this case is a drug addict. The evidence against him on this charge is a few lines of a written statement. It is wholly uncorroborated.

52. In relation to such confessions Section 10 of the Criminal Procedure Act, 1993 provides:-

53. This measure is described in Byrne and Binchy Annual Review of Irish Law, 1993 as “The legislative reaction to the fall out from recent well publicised cases of miscarriages of justice, including the Guilford Four and the Birmingham Six cases in Britain and, in Ireland the Nicky Kelly case”.

54. It is indisputable that certain cases where the sole evidence has been an alleged confession has given rise to justified concern. In light of this, and of the statutory provision to which this concern has given rise, it is extraordinary that a very obvious means of obtaining independent evidence was, as far as the evidence in this case goes, not availed of.

55. If this case could be disposed of along the lines suggested in Ebrahim it would be a full answer for the Director to say that the case could be prosecuted in exclusive reliance on a confession; it would stand or fall on that evidence; and in any event the video tape might have turned out to be completely unfavourable to the Defendant. On that basis, Braddish would have been decided in favour of the Director. But the case would not be proceeding to trial at all unless the prosecution had enough evidence actually available to amount to a prima facie case. And it is simply contrary to experience of criminal trials to postulate that the prosecution are as much handicapped as the defence by the missing evidence. On the contrary, if the prosecution have a case they can stand up on different evidence, for example an alleged confession, their case may actually be strengthened by the absence of a video tape. In Braddish the prosecution had both types of evidence available to them and voluntarily decided to dispose of the video tape and rely on the confession only. It is hard to see why that would have been done unless it were thought that their case would be damaged by the video tape. Therefore, its absence would assist the prosecution.

56. From this case and the other cited it is clear that the English authorities require either bad faith or an established impossibility of a fair trial. In my view the seven examples given amply demonstrate that the English test is one which, properly applied, is almost impossible to meet. It is extraordinarily favourable to the prosecution and positively encourages an omission to seek objective photographic evidence if the prosecution feel they have a plausible confession or other evidence.

57. I would also add that, in my view, parting with possession of a video tape, or failing to take possession of it in the first place, can never be justified solely on the basis that a garda has formed the view that the tape is not helpful or is unlikely to be helpful.

58. Furthermore, if, on the balance of probabilities, video evidence is likely to have been available I believe that there is an onus on the Gardaí or the Director to give some explanation as to why it was not sought or obtained.

59. Before leaving this aspect of the case I would like to comment on a passage in Ebrahim at page 838 where it is envisaged that if a trial continues despite missing evidence it does so “........ leaving the Defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the Court through no fault of his”. I query whether that, in itself, would be an appropriate basis for an acquittal. As mentioned above, if a trial is to proceed at all, it must proceed on the evidence actually available. I do not follow how it is thought a court or jury can be invited to speculate on what evidence which is not before it might have been, if only it had been obtained or preserved. It is an interesting exercise to attempt to draft a portion of a hypothetical charge to a jury in which they are invited to consider acquitting on the basis of what evidence not before them might have been. Unless the circumstances are such that it is possible to urge that the absence of the evidence shows bad faith on the part of the investigators, I do not believe that it is possible to acquit on the basis of what the evidence might have been. And if bad faith could be shown, presumably the Defendant would have had the proceedings stayed and thus would not have needed to argue for an acquittal.

60. I have the misfortune to differ in this case from Fennelly J. I would not wish to exaggerate the scope of this difference. Firstly, I agree with him that any difference in our views of the facts of the matter is not particularly significant. Secondly, I wish to express my emphatic agreement with him that “........ it is of the greatest importance that the Courts ensure that the police force behaves within impeccable fairness in its handling of evidence.” On that all important issue of principle there is no difference at all. Thirdly, I agree with his observation that the emphasised part of what I said in my judgment in Braddish is indeed obiter:-

61. I would, however, repeat that view in the present case, where of course it is central to the resolution of the issue, and not obiter. It must of course be read in the context of the limiting statement also to be found in my judgment in Braddish:-

62. In the absence of a limitation such as this, there might indeed be ground for apprehension that, as Fennelly J. expresses it “........ where an accused person is in a position to show that the Gardaí have failed to seek evidence which would have had a potential bearing on the innocence of the accused, that will suffice to meet the test of a real and serious risk to a fair trial”.

63. I do not think that this is so. The emphasis, which is quite explicit both in Braddish and in this judgment, on the need for the obligation to seek out, and indeed to preserve, evidence to be reasonably interpreted requires, I hope, that no remote, theoretical or fanciful possibility will lead to the prohibition of a trial. But we are not dealing with anything of that sort here. On the evidence in the present case it is overwhelmingly likely that a video camera recorded the actual conduct of this robbery by its unmasked perpetrators. In those circumstances it appears to be not a possibility or even a mere probability, but a near certainty, that the video tape would indeed constitute evidence bearing vitally on the question of guilt or innocence.

64. I do not believe that to insist that such evidence be produced, or at least that some explanation be given for its non-production, is to take a novel conceptual step. On the contrary, as I have indicated above, I believe that the substantive conceptual step required was taken before the end of the Victorian era. It is true that, at that time, the emphasis was rather on the right of the police to seize evidence than on their duty to do so, but they were seen as having such a duty in the judgment of Wright J., cited above. This is because the right does not exist in a vacuum, but for a purpose. That purpose relates to the due administration of justice. It follows from this that it must be exercised in an impartial manner and not for the sole advantage of one side, or recklessly. I believe these conclusions follow inexorably from the judgment of Pallas CB, cited above. I do not believe that the long recognised right and duty to make all reasonably obtainable evidence available in a criminal case is properly open to criticism on the basis that it will open the floodgates to arguments based on potential relevance of a purely theoretical nature.

65. The near ubiquity of video cameras in urban settings is such that it demands the specific attention of the Courts if their judgments are to be realistic in a contemporary setting. The innovation required is one of adaptation to new technology rather than one of principle. For many years, in the cognate area of eye witness visual identification, it has been usual to seek the views of as many eye witnesses able to identify or describe a person as possible. This done, the prosecution must either call all such witnesses, whether they identify or describe the accused or not, or (at least on request) make the defence aware of the names and addresses, and give the statements, of the unused witnesses. This is so even, and indeed especially, if their testimony contradicts the description of the suspect given by those on whom the prosecution wish to rely.

66. To require that the same steps be taken by way of inquiry after, and preservation of, video tapes as witness testimony is not to require anything new in principle or unreasonably onerous in terms of work or expense. And it must be recalled that while a witness whose name or statement is not taken may, after all, be found by the defence, a video tape not taken for preservation will almost certainly be wiped or recorded over in a very short time. It is thus impracticable in most cases for responsibility for the seeking and finding of video tape evidence to rest anywhere but on the police.

67. I entirely agree with Fennelly J. that the UK code of practice, portions of which are set out in Ebrahim, may be appropriate to describe the common law duties of a police force in relation to the obtaining of evidence. Like Fennelly J., I do not consider that a trial should be prohibited merely because the police can be shown in a particular respect to have fallen short of the standards so expressed. In the existing regulations, for example, governing the treatment of persons in custody it is expressly provided that evidence shall not be excluded merely because of such a shortfall. But equally, if there is no power to prohibit a trial where the Gardaí have apparently ignored the common law version of the same values, there will be no incentive to comply with them and the position of the Courts will be a somewhat toothless one. I would prefer to assert a jurisdiction to prohibit a trial when there is a real risk that it will not be a fair one on this ground, as on any other. The exercise of that jurisdiction must be careful and realistic. There is also a responsibility on a Defendant’s advisers, with their special knowledge and information, to request material thought by them to be relevant.

68. Because we were not referred to these authorities I have not in any way grounded my conclusion on them. But they are of considerable interest and might usefully be referred to in a future case. Both State and Federal Courts have addressed the problems of loss of evidence and of evidence not sought with what can only be described as considerable intensity. The United States Supreme Court has pronounced in favour of a test very similar to that favoured by the United Kingdom judges in Ebrahim. It represents a considerable change in previous U.S. jurisprudence and, according to an academic authority has led to a “ongoing revolution by States against the standard set forth by the United State Supreme Court......” , apparently on the basis that they were entitled to adopt a more ample protection for their citizens than the minimum required by the Supreme Court, or that State Constitutions mandate a different standard of protection.

69. The traditional United States approach was expressed in U.S. v. Loud Halk [1979, 9th Circuit Court of Appeals] 628 F. 2d 1139 where the test was expressed as follows:-

70. This unsurprisingly, is described in later cases and in academic literature as the “balancing test”. However, it was overruled in Arizona v. Youngblood [1988] 488 U.S. 51. Here, there was a thorough going failure properly to pursue the scientific aspect of the investigation of an alleged sexual assault on a young boy. Chief Justice Rehnquist, speaking for himself and four others, said that:-

71. The reason given by the majority for the requirement of bad faith is stated as follows:-

72. One justice, Justice Stevens, concurred in the result but not in the opinion. He said:-

73. Justice Blackmun dissented in a judgment with which Justice Brennan and Justice Marshall agreed. Their dissent commends itself to me as a proper statement of the principles involved, in combination with the decision in Loud Halk, cited above.

74. They said that the majority had taken “a radical step” in the futile pursuit of a “bright-line rule”. They held that:-

75. The minority pointed out that the Chief Justice’s decision would restrain a trial in the single circumstance where “police action affirmatively aimed at cheating the process violates the Constitution. But to suggest that this is the only way in which the due process clause can be violated cannot be correct. Regardless of intent or lack thereof, police action that results in a defendant receiving an unfair trial constitutes a deprivation of due process ”. (Emphasis added).

76. Later they observed:-

77. The entire controversy is surveyed in Dinger:-

78. It is this author who claims that there is an “ongoing revolution by States” against the decision just summarised. I do not propose to cite the article other than to remark that it analyses the jurisprudence of numerous State Courts and considers the issues of principle involved from every conceivable point of view. I have no doubt that our jurisprudence could benefit from exposure to the thorough and earnest, not to say fraught, treatment of the topic in the United States Courts.

79. It follows from the foregoing that, in my view, the appellant has a strong case for the relief he seeks. But we are invited to exercise our discretion against granting the relief, on the basis of delay in seeking it.

80. The learned High Court judge held that the applicant had been guilty of excessive delay. He measured the delay from the date of the offence, 16th January, 1998 to the date of the first request for the tape, 29th January, 1999.

81. It is not possible to lay any down any hard and fast rule as to what level of delay is excessive in seeking relief of this sort. But, unless there is something extraordinary in the case, I do not think it is proper to measure the delay from the date of the offence. Unless one assumes that the defendant is guilty of what he is charged with, so that he is fully aware of the details of the crime, there does not appear to be any basis for taking this date as the commencement of any “delay” to be attributed to him. In the present case, the defendant was not charged with this offence until the 11th August, 1998, more than seven months after the date of the offence. There does not appear to be anything on the facts of the case which would have led him to inquire about the existence or otherwise of video tapes in the intervening period.

82. After being charged with the offence, the defendant was served with the Book of Evidence on the 10th November, 1998. The only evidence relied on in the Book was the alleged confession. He was returned for trial to the Circuit Criminal Court where he was arraigned on the 16th December and a trial date fixed for the 28th January, 1999.

83. It appears that on the 28th January his solicitor obtained an adjournment in order to allow for investigation of a different video tape, relating to a different charge. On the following day he wrote to the Chief State Solicitor asking for a copy of video recordings in relation to the premises to which this charge relates. It would appear, from the sequence of events, that the solicitor was moved to inquire about video tapes in this case because of their relevance in another matter with which his client was charged. We are not aware of the role played by video tapes in the other case.

84. In those circumstances it would seem to me to be harsh to disqualify the applicant from relief to which he was otherwise entitled on the grounds of delay. He is, I think, entitled to have it assumed in his favour that he knew nothing of a robbery at the Parkway Filling Station until he was charged with it on the 11th August, 1998. There is nothing to show that he should have been alerted to the possible presence of a video at any particular time thereafter. It is true that an alert person might infer from the increasing presence of video tapes in business premises generally that there might well be one in any filling station, and thus be led to check into the question. But since, on the evidence, it is far from clear that the Gardaí who actually attended at the scene paid any attention to the possibility of there being a video, it would be harsh to say that the defendant should have done so. It must also be said that the Director did not put this point in the forefront of his arguments on the hearing of the appeal, but emphasised instead the distinctions from Braddish’s case.

85. In all the circumstances I would grant an Order prohibiting the respondent from proceeding further with the prosecution of the applicant on the charge relating to the Parkway Filling Station.

86. This case is concerned with an important development in our criminal law.

87. The courts have, in recent years, established the principle that the paramount right of an accused person to a fair trial may, in certain circumstances, be sufficiently vindicated only by restraining the prosecution from proceeding to put him on trial at all. One situation in which that may occur is where evidence, capable of exonerating the accused person, has been destroyed or has otherwise ceased to be available.

88. In the present case, the appellant has failed to persuade the learned trial judge, Kearns J, that his trial should be prohibited. He has appealed against that decision.

89. On 18th January 1998, a robbery took place at the service hatch of the Parkway Services filling station in Palmerstown, Co Dublin. At about 6.00 pm, three youths, one armed with a knife, approached the hatch and demanded money from the female attendant. She handed over some £300 cash and cigarettes and the culprits made their escape.

90. This was but one of a number of similar incidents at the premises. There was a video surveillance system in operation. A number of cameras covered the forecourt area, the inside of the shop and the till area including the service hatch. This is the crucial feature of the evidence in this case and I will return to it in more detail .

91. The appellant did not come under suspicion until the month of March 1998. Detective Garda Denis Kenny of Ronanstown Garda Station Detective Unit learned in March that the appellant was being detained at Clondalkin Garda Station under section 30 of the Offences Against the State Act in connection with firearms offences. He had received other information which caused him to go there and to question the appellant. It is alleged that the appellant made a signed statement of admission to the Parkway robbery, which I will refer to as the robbery. He was, nonetheless, released without charge.

92. On 11th August 1998, the appellant was charged with the robbery, while he was appearing before the Dublin Metropolitan District Court on other matters.

93. Following the charge, a book of evidence was served on 10th November 1998. There was no evidence against the appellant other than the alleged written statement. He was returned for trial to Dublin Circuit Criminal Court and was arraigned on 16th December 1998. His trial was subsequently fixed for 28th January. He was also charged and arraigned in respect of the separate robbery at Clondalkin.

94. On 28th January 1999, the appellant’s solicitor obtained an adjournment of the trial in order to permit his advisers to view a video recording of the robbery at Clondalkin with which the appellant was also charged. It appears that the purpose of this intended inspection was to test whether there had been sufficient reasonable suspicion to justify the appellant’s detention in March 1998, because it was on that occasion that the appellant was alleged to have made the statement of admission to the robbery. Detective Garda Kenny, in his affidavit, swears that there was no mention of any video at Parkway.

95. On 29th January 1999, the appellant’s solicitors wrote to the Chief State Solicitor asking for a copy of all video recordings made at the Parkway premises from 4 p.m. on 18th January 1998 up to and including thirty minutes after the time of the offence. Following two reminders, the Chief State Solicitor’s Office wrote to say that copies of all videos in their possession and in the possession of the Garda Siochana had been supplied. Some had, indeed been supplied but none in relation to Parkway.

96. The judicial review proceedings, of which the present appeal forms part, were preceded and accompanied by attempts by the appellant to obtain discovery of copies of the videos. The most detailed account of the video issue arises from the material before the courts on those applications. I will, therefore, summarise them.

97. Firstly, in July 1999, the appellant brought an application in the context of his impending trial in the Circuit Court for discovery, specifying the video. Originally, it had been contended on behalf of the appellant that Brian Torley, the manager of the Parkway Service station, had handed the video to Detective Garda Kenny. An affidavit to that effect was sworn by the solicitor for the appellant based on a conversation with Mr Torley. It later became clear that this was not correct, as Mr Torley had never met Detective Garda Kenny. In the result, the appellant relied in the Circuit Court on an affidavit of Mr Torley. Apart from deposing to the existence of the video system over the relevant months as already described, Mr Torley said that there was a standard procedure in the event of a robbery. The Gardai would be notified by the pressing of a panic button and would arrive and view the video. The video tape would be given to the Gardaí. He said that he was certain that the video system was in operation at the time of the robbery and was “likely to have captured the events immediately prior to and subsequent to same, including the culprits moving to and from the said hatch area.” He said he did not recall the particular robbery as there were a number of them, but that it was unlikely that the procedure had not been followed. He repeated that the Gardaí were fully aware of the system and had taken away video tapes in respect of less serious events and in respect of periods during which no crime was committed. In response to that application in the Circuit Court Detective Garda Kenny swore that the “video was never given to or obtained by any member of the Garda Síochána connected with the Investigation of this case or otherwise.” Counsel for the appellant applied for leave to cross-examine Detective Garda Kenny but this was refused by Her Honour Judge Dunne, who decided that she could not conclude that there was in existence a video as described. She refused the application for discovery.

98. On 29th July 1999, the appellant applied in the High Court for leave to apply for judicial review taking the form of prohibition of the Director of Public Prosecutions (“the DPP”) from pursuing the prosecution. This was refused by Geoghegan J but leave to seek judicial review was granted by this court on appeal on 5th November, 1999 as follows:

99. The grounds were:

100. These reliefs were expanded by an amending order to include an injunction and broader declarations but not so as to alter the grounds.

101. The affidavit grounding the application for judicial review was sworn by the appellant’s solicitor. He outlined the history of the matter which I have given. He exhibited the affidavit of Mr Torley which had been sworn for the Circuit Court application rather than have him re-swear it for the High Court. The Statement of Opposition was filed on 19th January 2000. Detective Garda Kenny swore a detailed affidavit on behalf of the respondent dealing with the video. He was the officer in charge of the prosecution. His affidavit contained the following two paragraphs:

102. Later he added that “the alleged video recording was never in the possession of the prosecution.”

103. The appellant next sought discovery, within the context of the judicial review, not in respect of the video, but in respect of all documents relating to it and “original statements of all notes of all persons who participated in the investigation of the relevant offence including the Garda or Gardaí who attended the location of the relevant offence .... " An order was made by Kelly J for discovery of all documents “... touching on the existence or non existence of a video of the incident the subject matter of the charge.” The affidavit of discovery sworn on behalf of the DPP by Detective Garda Kenny denies that any such documents had ever been in the custody or power of either himself or his solicitors or agents or of any other person or persons on his behalf.

104. The learned trial judge considered the affidavit evidence. No oral evidence was given. He came to the conclusion that it was more likely than not that the investigating Gardaí were given the tapes. He thus purported to resolve, without hearing any oral evidence, a conflict in the affidavits, in effect rejecting the evidence of Detective Garda Kenny. However, he also said that there were possible innocent explanations such as that the equipment was not working on the night or that the tape was then or later accidentally erased. He considered, nonetheless, that there had been delay on behalf of the appellant in seeking the videos. He measured this by reference to the date of the offence (16th January 1998) and the first request for the tape (29th January 1999). This led him to exercise his discretion against the appellant.

105. The appellant submits that the courts will intervene to prevent a prosecution where there is a real risk that the trial will be unfair. Murphy v DPP [1989] ILRM 71 was a case where a motor car had been released by the Gardaí following their own forensic examination and notwithstanding an arrangement with the solicitors for the accused to permit them access to it for that purpose. Lynch J, in the High Court, held that, although nothing might have been found on the requested forensic examination, the accused had been deprived of the reasonable possibility of discovering evidence to rebut the prosecution case. He made an order prohibiting the trial. Relying on the recent decision of this Court in Braddish v DPP (Unreported 18th May 2001), and in particular the judgment of Hardiman J, the appellant argued that it was no excuse to say that the prosecution did not propose to rely on the evidence. The appellant has also complained throughout the proceedings that the DPP has relied on the evidence of Detective Garda Kenny, which is essentially hearsay, whereas no affidavits were sworn by the two Gardaí who, in fact, investigated the offence.

106. The DPP challenges the conclusion of the learned trial judge that the video had probably been given to the Gardaí. To avoid the necessity for an adjournment to remedy the absence of any notice of cross-appeal or notice to vary on this issue, it is accepted that the Court may consider this argument. The DPP lays particular emphasis on the constitutional disposition of the prosecuting function. The Court must begin by assuming that every judge presiding over a criminal trial will take all necessary and appropriate steps to ensure that the trial is conducted in accordance with due process of law. Cases such as Z v DPP [1994] 2 IR 471, D v DPP [1994] 1 ILRM 435, Daly v DPP , Nolan v DPP [1904] 3 IR 626, demonstrate that there must be a real and unavoidable risk to the fairness of a trial before the court will intervene to prevent a trial from taking place. Counsel for the DPP referred to an analysis of English cases of evidence rendered unavailable in the case of R (Ebrahim) v Feltham Magistrates' Court [2001] 1 WLR 1293 and [2001] 1 All ER 831 dividing them into cases where it would be unfair to put a person on trial because there has been an abuse of process and where it would simply be unfair because the behaviour of the prosecution was such that no trial should take place.

107. I will begin with some remarks about the evidence. Before doing so, I will comment on the stance and some of the arguments of the parties about the form of the evidence. It must be remembered that the proceedings take the form of judicial review, which are heard on affidavit. There are, no doubt, some imperfections attendant on this system of pleading. However, judicial review aims to achieve prompt and efficient resolution of challenges to the validity of administrative decisions. On occasion, as here, it involves review of steps in criminal proceedings. In a very great number of cases, the courts are asked to consider pure points of law. It is inherent in the nature of such proceedings that the evidence is taken on affidavit. It would be quite unreal and, in my view, wrong to expect that all the evidence will be given by those who have first hand knowledge of the matters at issue. In this case, for example, the affidavits on behalf of the appellant have, quite properly, been sworn by his solicitors. Equally, those on behalf of the DPP have been sworn by Detective Garda Kenny, the officer in charge of the investigation. Hardiman J. in his judgment in P O'C v DPP [2000] 3 IR 87, at 116 et seq., discusses the correct approach to the use of affidavit evidence in judicial review proceedings. Where, however, there are, as there are here, specific conflicts of fact, the courts do not resolve them on the affidavits. It may be necessary for the High Court judge, in order to do so, to receive oral evidence. (see P & F Sharpe v Dublin City and County Manager [1989] IR 701 at 719). Where a party wishes to challenge or enquire into an averment on affidavit by or behalf of an opposing party, he also has the right to serve a notice to cross-examine. Faced with a specific denial of a fact which he asserts, a party should avail of this possibility. It is not a matter of gamesmanship but of applying the rules.

108. In the present case, the appellant included, as en exhibit in his grounding affidavit, the affidavit of Mr Torley, which had been sworn in the Circuit Court. Counsel for the DPP argues that Mr Torley swore no affidavit in the judicial review. On the other hand, counsel for the appellant complains that the evidence of Detective Garda Kenny regarding the existence or Garda possession of the video is hearsay. In fact, the Court has before it, whether in the form of exhibits or affidavits sworn directly in the judicial review proceedings all the material which passed between the parties both in the Circuit Court and the High Court. That appears to have been the eminently practical approach taken by the learned trial judge to the evidence.

109. With regard to the nub of the case, he was not in a position to resolve the dispute as to whether the video had been in the possession of the Gardaí. I recall that Her Honour Judge Dunne was not able to resolve it in the Circuit Court. In my own view, this issue remains unresolved. The appellant has produced no direct evidence that the video was given to the Gardaí, but relies on inferences to be gathered from the evidence of Mr Torley. Detective Garda Kenny, on the other hand, swears positively that it was never in his possession or “of the prosecution.” His affidavit of discovery, as we have seen, related only to documents concerning the existence or non-existence of the video. In that respect, his averment is equally broad. In compliance with the obligations incumbent on him in swearing the affidavit of discovery on behalf of the DPP, he deposes that there are or were not at any time any such documents.

110. If it was to be claimed that there was some remaining gap in the evidence of Detective Garda Kenny, it could only have been resolved by oral evidence, perhaps in the form of an application to cross-examine. This was not done. Accepting, as I do, that the affidavit of Mr Torley should be treated as being before the court, the same treatment should be accorded to Detective Garda Kenny's repeated statements and I do not think that Mr Torley can be said to negative the clear and repeated statements of Detective Garda Kenny that neither the video nor any record in connection with it was at any time in the possession of the prosecution. The appellant cannot simply ask the Court to disregard this evidence. On the authorities, it is clear that the burden of proof is on the appellant.

111. As matters stand, therefore, in my view, it is clear that there was a system of video recording in place at the Parkway Service Station. The Gardaí were fully aware of it. They could, presumably, have taken possession of it, but there is no evidence that they did so.

112. There are, of course, such cases. The criteria for such intervention should be clearly set out. I believe they are.

113. The cases in which trials have been prevented come under a number of headings. In some cases, it has been held that a prosecution has been so long delayed that a fair trial is no longer possible. Then there are cases, in which widespread adverse publicity has been held to make a fair trial impossible. Finally, there are cases, such as the present, where the destruction or unavailability of evidence is alleged to prejudice the chances of a fair trial. Different considerations affect the application of certain common principles to these three categories of case. The risks to the fairness of the trial may take different forms and may be to a greater or lesser extent remediable.

114. There is, nonetheless, a common thread which runs through them. It is that, in every case, the accused person has the right to a fair trial. Furthermore, although society at large has an interest in seeing that persons charged with criminal offences are brought to justice, in the event of conflict, the right of the accused is the superior one. Denham J stated in D v Director of Public Prosecutions [1994] 2 ILRM 435:

115. It does not follow, of course, that this right can be vindicated only by preventing a trial. On the contrary, in the vast majority of cases, it is precisely at trial that the court of trial is obliged to see that it is fully protected. In those cases where the High Court is asked to halt or prevent a trial, a test has been developed which has been applied to all three types of case.

116. The applicant for such an order must establish, the burden being on him, that there is "a real or serious risk" that he will not have a fair trial. (per Finlay C.J. in D v DPP , loc. cit., page 436 also per Keane C.J. in J O'C v DPP [2002] 3 IR 478 at 480). This was qualified, also by Finlay C.J. in Z v Director of Public Prosecutions [1994] ILRM 481, at 499, by the statement that “it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge.” He added that, although the “risk is a real one .... the unfairness of trial must be an unavoidable unfairness of trial.”

117. The import of these latter remarks is that the court will have to be persuaded that the trial judge, even by adopting the very greatest care in the conduct of the trial, is likely to be unable to eradicate the taint of unfairness. To quote an Australian judgment, cited by Hamilton P, as he then was, in Z v DPP :

118. The specific decisions in this jurisdiction on cases such as the present, where evidence is or has become unavailable at the trial are smaller in number. Before dealing with them I will refer to the judgment of the Divisional Court of the Queen’s Bench Division (Brooke LJ and Morison J) in R (Ebrahim) v Feltham Magistrates’ Court (mentioned above) which gathers together a group of relevant instances. Firstly, the court distinguished a separate category of cases, not relevant here, where, by reason of the misbehaviour of the prosecution, it would be unfair to allow the case to proceed simply on that ground and not by reason of the fact that the trial itself would be unfair. The court continued:

119. The court then proceeded to recount the facts and decisions in a number of cases in which there had been possible or actual video evidence from CCTV installations at crime scenes but which was or would be unavailable at trial. In some cases, courts of first instance, in the exercise of their own discretion, stayed proceedings and in others they did not. Generally, such decisions were upheld on appeal as being within discretion, but the picture is a confused one and there is no authoritative decision. It appears, nonetheless, that a criminal trial will be stayed in the event of risk to a fair trial provided that there is proven misbehaviour by the prosecution, but the latter appears to emerge as an essential feature in most of the cases.

120. It appears that the English courts recognise a jurisdiction in the trial court to stay a prosecution if there is a risk to the fairness of the trial. Hardiman J. deals with this issue extensively in his judgment. For my own part, I do not think that the passage cited from the judgment of Finlay C.J. in State (O’Connell) v Fawsitt [1986] IR 362 eliminates the possibility that a trial judge may order a stay on a prosecution before him. I would prefer to leave that matter for full argument on another occasion. It has not been argued in this appeal and does not affect the conclusions I express, though the extent of the availability of that remedy to ensure the fairness of the trial may be material to the question of whether an order of prohibition will be granted.

121. There is a small but significant body of cases in this jurisdiction, to which I now turn.

122. The starting point, by common accord, is the judgment of Lynch J in the High Court in Murphy v DPP, cited above. The complaint of the accused was that the Gardai, in spite of a clear and specific arrangement with the solicitor for the accused that the car involved in the commission of the alleged offences would be available for inspection, disposed of it without notifying the solicitor. Lynch J posed for himself (page 75) the question: “In what way could the actions of the DPP be said to be contrary to fair procedures?” Having referred to the fact that the Gardai were aware at an early stage that the accused wished to inspect and test the car. He held (page 76) that “the Gardai’s action in the circumstances, amount[ed] to a breach of the rule of fair procedures.”

123. In the same year, this Court also rejected an attempt to prevent a trial on the basis of missing evidence in Nolan V DPP [1994] 3 IR 626. The offences were charged under the Diseases of Animals Acts and alleged the introduction of turpentine into the bloodstream of cows for the purpose of affecting the accuracy of officially conducted tuberculosis tests. The cows had been slaughtered but the Department of Agriculture had taken samples from 22 of the carcases, which were then destroyed. The result was that the accused did not have an opportunity of testing them himself. The prosecution proposed to rely on the results of the tests. As the accused had not sought to have an examination carried out before the animals were destroyed, the case for the accused in seeking prohibition rested solely on a contention that his trial would be unfair and a breach of fair procedures because parts of the carcases examined for the state were not available to him. Blayney J gave the unanimous judgment of this Court. “The real issue” was, he said, “whether in the particular circumstances the State should be entitled to give evidence of the result of the tests carried out on the samples.” That, he concluded was essentially a “matter to be decided by the District Court Judge.” If he were to rule that the evidence should not be given, than any complaint of an unfair trial, “there could not be any question of the applicant's trial being unfair.” Furthermore, the Court noted that there was other potential evidence as disclosed in the book of evidence. The learned judge did not rule whether the trial would be unfair in the event that the District Court Judge were to admit the evidence. The core of the judgment was that that was a matter for the court of trial to decide. It is a necessary inference from the terms of the judgment that the Supreme Court saw no inherent unfairness in the prosecution being in a position to give evidence against the accused of tests on samples which had not been available to the accused.

124. Hardiman J gave the judgment of this Court with which Denham and Geoghegan JJ agreed. He pointed out, firstly, that, if the accused wished to object, at his trial, to the legality of his detention and, since that was being justified on the basis of the Garda evidence of inspection of the video, it would not be possible for him to do so unless he had the video. He went on to say:

125. I fully agree with that reasoning. The reasons advanced for the conclusion that the further trial of the applicant should be prohibited were twofold. The first does not appear to arise in this case. The detention of the appellant in this case on 11th March 1998 was not based in any way on the video of the robbery that is in issue in this case. The second is, in any event, the more important reason. It is that, the Gardaí should not have destroyed evidence in their possession by giving it back to the shop owner. They should have preserved it so that the accused could inspect it. It did not matter, in particular, that the prosecution did not intend to rely on it. The important point was that the accused should have the possibility of inspecting it to see if there was a possibility that it would assist his case.

126. Hardiman J added that the judgment of Lynch J, where he used the expression, “may give rise to the reasonable possibility of securing relevant evidence” should be considered in the light of case-law on the rules applicable to discovery of documents in civil proceedings, i.e., that all documents should be discovered which it is reasonable to suppose may, not merely must assist the opposite party to advance that party’s own case but to damage that of his adversary. I do not find it necessary to comment on this issue, as it does not arise in this case.

127. The underlying principle must be to ensure that the appellant has a fair trial. This must, I think, be determined objectively. Evidence, which has existed, may have ceased to exist before trial for a multitude of reasons. A material witness may have died or have become unavailable; evidence may have been destroyed in a fire or simply been lost. None of the cases suggest, nor could they, that an accused person should be allowed to evade trial because such random events have possibly prevented him from finding exculpatory evidence. However, effect on the the fairness of a trial of the absence of evidence is the same whether or not it has been in the hands of the police. In my view, the determining element in the cases is that the missing evidence has been in the hands of the prosecution. This was so in all four of the cases cited. The rationale of the decision of Lynch J in Murphy v DPP is that the Gardaí had evidence in their possession which could possibly be of assistance to the accused. They could not be allowed to pass judgment on whether it would, in fact, have assisted him. For that reason, it is correct to apply a standard based on possibility combined with real and serious risk of unfairness. All this takes place in the context of a possible trial and it is of the greatest importance that the courts ensure that the police force behaves with impeccable fairness in its handling of evidence. If it had been established, in this case, that the contested video had, in fact, been given to the Gardaí, I believe that the same result should have been applied as in Braddish. In this case, however, the relevant Garda officer, Detective Garda Kenny, has denied repeatedly and emphatically and in the clearest terms, that it ever came into Garda possession. I have already explained why I do not think it suffices for the appellant to place the inferential evidence of Mr Torley in contradiction of such clear denials. It must be recalled that the burden on the appellant is to show a real or serious risk that he will not have a fair trial. His case, on the evidence, would have to be paraphrased as stating that there was a possibility that video tapes which may or may not have come into Garda possession contained evidence tending to exculpate him. Quite obviously, the evidence does not meet that standard.

128. The difference of opinion between myself and Hardiman J is not entirely limited to our different approaches to the assessment of the facts. In truth, the difference in that respect is not very great.

129. The more important issue is that Hardiman J says that the principle enunciated in Braddish is that:

130. On the facts of Braddish, the video evidence had actually been in the possession of the Gardaí. For that reason, the decision of the Court was consistent with the line of authorities commencing with the judgment of Lynch J in Murphy v DPP . Where the passage, just cited, goes further so as to encompass evidence which the Gardaí should have sought out, I believe it is obiter. More importantly, it represents a very significant new step in the law. The passage states that the Gardaí are under a duty to “seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence.” That is no doubt a reasonable statement of the duties of policemen in the performance of their work. It does not, however, necessarily follow that, where an accused person is in a position to show that the Gardaí have failed to seek evidence which would have had a potential bearing on the innocence of the accused, that will suffice to meet the test of a real and serious risk to a fair trial. On such an assumption,a trial will be prohibited, wherever a court can be persuaded that the Gardaí have failed to seek out any identifiable evidence which might even possibly tend to exonerate the accused. I cannot agree that our criminal law should go so far. It is difficult to say where the line will be drawn. Giving the increasing prevalence of CCTV in our towns, it is to be anticipated that there will be a rash of applications for prohibition wherever video evidence is not produced. Even where it does not cover the crime scene, why should it not be arguable that video recordings of activity in surrounding areas should be obtained. The danger is that there will develop a tendency to shift the focus of criminal prosecution onto the adequacy of the police investigation rather than the guilt or innocence of the accused.

131. Having said all that, on the assumption that I am incorrect in my views in the present case, I agree with Hardiman J and for the reasons which he gives that such delay as the accused was guilty of did not warrant refusal of the remedy which he sought.

132. A test thus formulated may be appropriate to describe the duty of the police. I would not wish to see it become a vehicle for the prohibition of trials wherever the police can be shown to have fallen short of it.

133. I would, however, dismiss the appeal.