While there are a number of interesting cases in the Irish courts at the moment (not least among them the (now settled) case of two young Kerry brothers, aged 14 and 8, seeking a High Court order against the GAA to allow them to play Gaelic football for Listry rather than Ballyhar-Firies) one which caught my eye was the High Court “missing evidence” decision reported in last Friday’s Irish Times. This was a decision of Kearns P. in the High Court refusing to prohibit the trial of the applicant who claimed that the absence of certain evidence would lead to a real risk of an unfair trial. The applicant, an articulated lorry driver, is charged with dangerous driving causing the death of another lorry driver on the M4 motorway in November 2008. He argued, before the High Court, that the gardaí had failed to preserve the two vehicles involved in the collision, that, accordingly, he could not have an engineer inspect the vehicles on his behalf, and that all of this led to a real risk of an unfair trial. Kearns P. held that the circumstances of the instant case were not such as to deem it one of the exceptional “missing evidence” cases which might justify the prohibition of the impending trial and he further commented on the delay on the applicant’s part in seeking to inspect the vehicles in any case.
This is one in what is now a long line of “missing evidence” cases, which began to emerge as a real phenomenon on the Irish justice scene about ten years ago. Although the legal premise for such cases arose in the 1980s (see, for example State (O’Connell) v Fawsitt  I.R. 362 and Murphy v DPP  I.L.R.M. 71) real interest in the “missing evidence” concept as a method to seek to force the prohibition of an impending trial did not gather pace until the early 2000s.
Cases of this nature centre on the constitutional right to a fair trial and the recognised garda duty, so far as practicable and necessary, to seek out and preserve evidence having a bearing or potential bearing on the issue of guilt or innocence in a given case. In the important case of Braddish v DPP  3 I.R. 127, Hardiman J., in the Supreme Court held that the gardaí have a duty
…arising from their unique investigative role, to seek out and preserve all evidence. This is so whether the prosecution propose to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not (at 133).
However, the fact that gardaí may have failed in their duty to seek out or preserve evidence is not enough in and of itself to have a trial prohibited, nor is it the central concern of the courts in such a case; in order to succeed in an application of this nature the applicant must prove that the absence of the “missing evidence” results in a “real risk” of an unfair trial and that directions or rulings by the trial judge would be insufficient to avoid such unfairness. This is a strict standard which is difficult to satisfy, and the Irish courts have shown themselves to be reluctant to prohibit a trial on the basis of “missing evidence”, particularly if there is alternative evidence still available, or if the “missing evidence” would not have had much evidential significance. Indeed, the courts are of the view that an order to prohibit prosecution should only be given in exceptional circumstances (see, for example, the dicta of Denham J. in RC v DPP  IESC 32 at para 10).
Despite the strictures of the courts’ approach to “missing evidence” cases, this is a popular subject for judicial review. Indeed, Fennelly J. in the Supreme Court in CD v DPP  IESC 70 noted that in less than 2 years the Supreme Court had heard 8 appeals in “missing evidence” cases. He then said
It is not easy to avoid the suspicion that a practice has developed of trawling through the book of evidence in search of the silver bullet—rather the absent missing bullet—which can put a stop to any trial.
However, only a limited number of applications have been successful in actually stopping the impending trial and the delay occasioned in other cases by protracted judicial review to the superior courts is a cause for concern in terms of fairness in and of itself. This issue was highlighted by O’Donnell J. in the Supreme Court in Byrne v DPP  IESC 54 wherein the learned judge considered the effect of applications to prohibit trials on the basis of “missing evidence” on the criminal process and the potential future workings of this aspect of criminal procedure/judicial review. The applicant in Byrne sought, unsuccessfully, to have his District Court trial on charges of assault and criminal damage prohibited. O’Donnell J. noted that the case had been delayed by six years due to the challenge to the proceedings and that the disposal of the case now, while obviously necessarily to be conducted in accordance with constitutional fairness,
is less than the ideal envisaged by the Constitution when it contemplated courts of local and limited jurisdiction.
O’Donnell J. traced the beginning of judicial review of pending prosecutions in relation to both delay and missing evidence to the case of State (O’Connell) v Fawsitt  I.R. 362 wherein it was stated that judicial review was the appropriate remedy where a challenge was brought to an anticipated trial on indictment in the Circuit Court. In State (O’Connell) v Fawsitt it was suggested that in a summary trial an equal or alternative remedy might be to apply to the trial judge for a dismissal on grounds of delay (which was the central issue in that case), or, as O’Donnell J. suggested in Byrne, in relation to an allegation of unfairness caused by “missing evidence”. While difficulties would also apply to this, O’Donnell J. considered that it might provide a speedier and cheaper means of remedy in summary cases than an application to the High Court for judicial review. He suggested that
[i]n these days of vastly overburdened lists in the Superior Courts and enormous demands on the public purse, it is perhaps desirable to give consideration to whether at least in the case of summary proceedings such an application would not be a preferable procedure.
This looks like a judicial nudge to the Oireachtas to address the issue and, at least as far as District Court proceedings go, to try to speed up the resolution of “missing evidence” cases.
The Oireachtas has already stepped into this area of criminal procedure and while the provisions recently enacted within the Criminal Procedure Act 2010 would not have applied to the Byrne case they might have been useful to avoid the circumstance complained of in last week’s High Court decision involving the articulated lorry driver. Under s.35 of the Criminal Procedure Act 2010, amongst other things, notice must be given to the defence when the prosecution intends to return any property which is to be entered into evidence in a criminal trial to its owner or to dispose of it before the trial begins. Notice of the proposed disposal or return of the relevant property must be served by the prosecution on the accused at least 23 days prior to the scheduled date of the start of the trial (s.35(2)) and the accused then has seven days in which to respond (s.35(4)).
Discussing this section of the relevant Bill in the Seanad prior to promulgation, Senator Ivana Bacik questioned whether the time limits set out thereunder were workable. In particular, she queried whether the expectation that the defence would respond to the “prosecution notice” within seven days would work in practice. Senator Bacik observed that while the prosecution must issue the relevant notice 23 days prior to the scheduled beginning of the trial at the latest, in reality the opportunity for issuing such a notice might arise far earlier in the criminal process, potentially before an accused person has even retained a solicitor. She provided an example of a case involving stolen goods: a crime is reported to the gardaí, stolen goods are found during the investigation, a suspect is arrested, and the owner seeks return of the property, potentially even before the accused’s first appearance in the District Court. Senator Bacik recommended that the possibility of the defence having a longer time-frame in which to respond to a prosecution notice under this section should be explored, but ultimately the seven-day response requirement was retained in the final Act. (See Seanad Eireann Debates, Criminal Procedure Bill 2009: Committee Stage (Resumed), Wednesday, 2 December 2009 vol. 199 no.1 col 52-53.)
While the practicalities of the operation of s.35 of the Criminal Procedure Act 2010 are yet to be seen in practice, and any difficulties associated with the time limits prescribed therein are yet to be tested in reality, it is to be hoped that the requirement on the gardaí/prosecution to inform the accused/defence of the proposed disposal or return of relevant evidence will reduce the number of “missing evidence” judicial review cases coming before the superior courts and the delay in prosecutions associated therewith. It may also ensure that garda systems relating to the preservation of evidence are improved. O’Neill J. in the High Court in English v DPP  IEHC 27 was critical of the absence of appropriate facilities in Garda Síóchána stations for the storage of evidence such as CCTV footage. Although he held that no unfairness would result in the applicant’s trial for arson as a result of the garda loss of a CCTV recording, he stated that:
…it is incomprehensible that every garda station does not have a facility for the secure storage of this kind of evidence. It is wholly unacceptable that evidence of this kind invariably ends up in the personal locker of investigating gardaí. I appreciate that gardaí do they best they can to safeguard evidence in this way, where there is no dedicated storage facility for that purpose.
What is required is neither elaborate or expensive. A locked cupboard or filing cabinet would suffice into which the evidence, properly labelled, namely, with the name of the accused, the investigating gardaí and the numbers of the charge sheets or summonses attached.
He went on to state that the consequence of the absence of such a simple and basic facility was that
… dozens of criminal trials have been delayed for lengthy periods and a great deal of money has had to be needlessly expended on judicial review proceedings. In addition, a small number of trials have been prohibited with the consequent defeat of the right of the public to have these matters prosecuted to a lawful conclusion.
O’Neill J. expressed a wish that, “after almost a decade of these cases”, the root cause of the loss of evidence such as this could be addressed. Hopefully it will be.
Of course, the preservation of specific items of evidence is just one aspect of these cases, other applications have centred on the failure of the gardaí to seek out specific evidence in the first place (see, for example, CD v DPP  IESC 70 wherein the applicant unsuccessfully claimed that the failure of the gardaí to obtain still images from a CCTV recording at half-second intervals rather than one second intervals gave rise to a real risk of an unfair trial; and McG v DPP  IEHC 294 where it was held that there was no risk of an unfair trial for the offence of rape where, inter alia, the gardaí had decided not to re-interview the complainant and another witness and not to forensically examine certain items). Accordingly, s.35 and any improvements to garda processes in terms of preserving evidence will not put an end to the “missing evidence” phenomenon in the Irish criminal process.
This post has given a very brief overview of some of the issues currently raised by “missing evidence” cases, but there are many more issues and it seems likely that they will only expand in the coming years as accused persons and their lawyers seek that “silver bullet” to make a prosecution go away.