Atherton v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 21 December 2005
• Neutral Citation: [2005] IEHC 429
• Court: High Court
• Docket Number: [2005 No. 671 S.S.]
• Date: 21 December 2005

[2005] IEHC 429

THE HIGH COURT

Record Number: No. 671 SS/2005

ATHERTON v DPP

Between:

Richard Atherton

Accused

And

Director of Public Prosecutions

Respondent

DPP v KENNY 1990 2 IR 110

D v DPP 1994 2 IR 465 1994 1 ILRM 435

CONSTITUTION ART 40.5

KANE v GOVERNOR OF MOUNTJOY PRISON 1988 IR 757 1988 ILRM 724

KENNEDY v IRELAND 1987 IR 587 1988 ILRM 472

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

DPP v HEALY 1990 ILRM 313 1990 2 IR 73

CONSTITUTIONAL LAW

Personal rights

Privacy - Inviolability of dwelling - Whether video footage including of accused's private dwelling obtained in breach of his constitutional rights - Constitution of Ireland 1937, Article 40.5 - Case stated answered that evidence was admissible (2005/671SS - Peart J - 21/12/2005) [2005] IEHC 249 - Atherton v DPP

CRIMINAL LAW

Evidence

Video surveillance - Carried out by complainant - Included incidental footage of accused's private dwelling - Admissibility - Whether obtained in breach of accused's constitutional rights - Whether unlawful - Case stated answered that evidence was admissible (2005/671SS - Peart J - 21/12/2005) [2005] IEHC 249 - Atherton v DPP

Facts: The accused was charged with damage to property. This case stated posed the question whether, if the complainant arranged for continuous video surveillance of the front of his residence from the upstairs window of a neighbour's house which resulted in video evidence which also incidentally included adjacent frontage of the accused's dwelling, the evidence obtained breached the accused's constitutional rights.

Held by Peart J. in answering the questions posed in the negative that the taking of the video footage was not an act which constituted an unconstitutional invasion of the right to privacy.

Reporter: R.W.

1 Mr Justice Michael Peart delivered on the 21st day of December 2005:

2 This is a case stated to this Court by District Judge Bryan Smyth arising out of the prosecution of the accused person on the following charge, namely that he:

"did on the 19th May 2003 at 12 Island View, Malahide, Co. Dublin in said District Court Area, without lawful excuse damage property, to wit, mature hedging plants belonging to Colm Hughes intending to damage such property or being reckless as to whether such property would be damaged."

3 The question posed in the Case Stated is:

"If the complainant arranges for continuous video surveillance of the front of his private residential property from the upstairs window of a neighbour's house across the street which results in video evidence that incidentally includes adjacent frontage of the accused's private dwelling and its curtilage which can be seen from the public thoroughfare, is the evidence obtained:"

(i) in breach of any constitutional rights of the accused;

(ii) unlawfully, and

(iii) if the answer to (i) and/or (ii) is in the affirmative, is the evidence admissible in a criminal trial?"

4 In his Case Stated the District Judge has stated that when the case came on before him there was evidence from a Garda that the complainant had approached him complaining that his neighbour, the accused had cut his hedge without his permission and had caused damage to it, and that when the Garda interviewed the accused and put certain questions to him about the complaint, the accused had given an account of builders and landscapers who caused some damage before he stopped them, and was unable to account for further damage. According to the Case Stated, it appears that the Garda stated also that at that stage he showed the accused some video footage, and the Garda began to give evidence of what was appearing in the video, when Counsel for the accused objected to the introduction of an account of what was on the video.

5 It appears also that in his evidence the Garda stated that when he was first approached by the complainant about this damage he said to the complainant that there was not enough evidence against the accused to bring a prosecution, and he also said that video evidence was then discussed, and that in due course the complainant returned to the Garda Station with video footage purporting to contain footage of the alleged unlawful conduct of the accused.

6 From the Garda's evidence it appeared that the complainant had arranged for a fixed video camera to be set up in the upstairs front of a house across the road from the complainant's house, and which is attached to the accused's house. They are adjoining semi-detached houses across the road from where the video camera was set up. The camera was set up to record a single frame which captured the view of the front of the accused's house including his front door, his front driveway, his front garden and that part of the garden hedge between his front garden, and the front garden of the complainant's house. This video camera was set up on a continuous 24 hour basis. The Garda stated in his evidence that footage captured on this video included being able to see inside the accused's front door when it was opened, but that this was what he called "incidental footage". He also stated that if the curtains were open one could see inside the front windows, and when asked, the Garda confirmed that 70% of the video frame consisted of the front of the house, with the remainder consisting of the garden and the hedge, but he stated that the front of the house was incidental. The Garda also stated that everything that is seen on the video camera was capable of being seen from the street itself, albeit that one might have to stand up on a step-ladder to do so.

7 Against this background the accused seeks to argue that the video footage or evidence of what it contains should not be admissible on the ground that it has been obtained in breach of the accused's constitutional rights, inter alia, the right to privacy attaching to the right to the inviolability of the dwelling (including its cartilage) referred to in Article 40.5 of the Constitution as follows:

"The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law."

8 Michael O'Higgins SC has submitted that even where, as may be the situation in the present case, the video footage identifies the applicant as being the person causing damage to the complainant's hedge, the manner in which that evidence has been garnered must be examined by the Court in just the same way as an inculpatory statement made by an accused person can be examined as to its admissibility. He submits that in such circumstances where there has been a breach of a person's constitutional rights in the manner in which the evidence has been obtained, this Court should intervene and declare it to be inadmissible at trial, unless there are some excusing circumstances which would allow into evidence that which would otherwise be excluded. Such circumstances in his submission would have to be extraordinary and excusing and in that regard, Mr O'Higgins has referred to the decision in The People (DPP) v. Kenny [1990] 2 IR, 110. He has also referred to the judgment of Denham J. in D. v. The DPP in which she stated that in a hierarchy of rights the right to a fair trial was a superior right.

9 Mr O'Higgins has referred the Court also to a Report of the Law Reform Commission Report in 1998 where that body considered, inter alia, the right to privacy and the surveillance of the home or other private premises, and in particular to the fact that the report refers to the fact that the right to freedom from surveillance is at its closest to being absolute when a person is at home. This is in contrast to a reduced right to privacy when a...