Supreme Court allows summary trial to proceed despite delay and missing CCTV evidence.

THE SUPREME COURT

Judicial Review

385/05

Fennelly, J

Finnegan, J

O’Donnell J

Between:

Paul Byrne

Appellant

V

Director of Public Prosecutions

(At the suit of Garda Joseph Enright)

Respondent

Judgment delivered by O’Donnell, J. on the 17th day of November 2010

At approximately 7.30 pm on the 7th April 2004 the gardaí were called to a disturbance at the Centra store at Talbot Street in the

centre of Dublin. They were met by Mr Moeed Hamid, the manager of the store. He told the gardaí that two men, one of whom was

the Applicant, had ordered food from the delicatessen counter and had then attempted to leave without paying and that when he

approached them they abused him verbally, took items from the shelves and threw them at him and other members of the staff. Mr

Hamid pointed out the two men who were still on the premises and who appeared to the gardaí to be intoxicated. They were still

verbally abusing Mr Hamid. Garda Enright arrested the Applicant for an offence under the Criminal Justice (Public Order) Act, 1994.

The Applicant was subsequently charged with assault contrary to s.2 of the Non Fatal Offences Against the Person Act, 1997 and

criminal damage contrary to s.2 of the Criminal Damage Act, 1991. The DPP directed summary disposal, and jurisdiction was accepted

by the District Court. On September 9th 2004 another man pleaded guilty to charges arising from the same incident.

Thus far the incident was one which is, unhappily, a fairly routine matter in city centre shops and indeed in the District Court.

However, the Centra store, like many other convenience stores and petrol stations, was equipped with CCTV. Since the landmark

case of Braddish v DPP [2001] 3 IR 127 the existence, or indeed more accurately the absence, of CCTV footage and its impact on

trials has been the subject of extensive consideration in the Superior Courts.

It is now accepted that the facts of each case may be critical in determining the legal consequences of the absence of CCTV

footage, or indeed any other available evidence. Here the position was set out in the affidavit of Garda Enright. His account was not

challenged in any replying affidavit and he was not cross-examined. On the night in question he inspected the CCTV system. Mr Hamid

told him that the system did not permit the burning of a CD to copy the images but did allow for the printing out of still photographs

from the film. Mr Hamid printed out eight colour pictures which he gave to Garda Enright.

On the 26th May 2004, the solicitors for the Applicant wrote a standard letter to the Superintendent in Store Street garda station

seeking copies of any witness statements and if none were in existence, a precis of the evidence to be given, copies of any

statements alleged to have been made by the accused, copies of the custody record, and any other documents relied on. The letter

continued “with reference to video evidence, we rely on the Supreme Court rulings in DPP v Braddish and DPP v Dunne, and request

that you forward a copy of any such video to this office”. In response to this request the solicitors were furnished with a rudimentary

precis of the case, the custody records, and the stills referred to above. The solicitors then sought a copy of the video from which

the stills had been taken. The garda response on the 10th August 2004 was that there was no CD burning facility on the system and

“arrangements are being made to have the images transferred for viewing”. On the 10th February 2005 however, the gardaí

informed the solicitors that the footage was “no longer on the hard drive”. There the evidence rested, save that it appears Mr Hamid

is no longer employed by the store.

The Applicant commenced judicial review proceedings seeking prohibition of the trial in the District Court. A grounding affidavit was

sworn by the Applicant’s solicitor. The Applicant himself did not swear an affidavit. In the solicitor’s affidavit, the only thing said about

the particular incident is the following:

“I say that my instructions are that the applicant denies the aforesaid charges alleged against him and has pleaded not

guilty to each of these.”

The affidavit recited the sequence of correspondence and concluded that the deponent had been advised that “in the circumstances

the respondent [the DPP] has failed to ensure that the gardaí sought and preserved all evidence material to the allegation made

against the applicant”. It is apparent therefore, that this is not a case where it is alleged that the gardaí having retained evidence

have somehow lost or mislaid it or returned it to the owner so that it is no longer available. Here it was suggested that the gardaí had

failed to secure from a third party, evidence of undeniable relevance, being CCTV coverage of the incident the subject matter of the

charges. The case thus raises the question of the extent of the duty of gardaí to seek out and preserve evidence. This was the

subject matter of Dunne v Director of Public Prosecutions [2002] 2 IR 305, albeit, that in that case there was an unresolved dispute

as to whether the gardaí had ever taken possession of the video tape in that case.

Since the decision in Braddish, the Superior Courts have experienced a significant number of cases about evidence, particularly video

evidence, which has been lost, mislaid or as in this case, not obtained in the first place. Each case, it has been emphasised, must be

determined on its own facts. However it is now recognised that Braddish was a very simple, indeed exceptionally straight-forward

case (See Scully v Director of Public Prosecutions [2005] 1 IR 242, 248-249, Hardiman J.) where the missing CCTV footage which had

been viewed by the gardaí not only showed the incident alleged to constitute the offence, but was the basis upon which the accused

had been identified. The principle in Braddish has to be “interpreted realistically on the facts of each case” (See Braddish Hardiman J.

and Dunne McGuinness J. Page 309). The realistic interpretation of the principle can be illustrated by the subsequent decision in

Bowes & McGrath v Director of Public Prosecutions [2003] 2 IR 25, where the Supreme Court dealt with two applications to prohibit

trials on the grounds of missing evidence. In the McGrath case, the accused was charged with dangerous driving causing death. The

motorcycle of the deceased had been released by the gardaí prior to the prosecution being commenced and there was credible

evidence of the importance of permitting forensic investigation of the machine. Furthermore, such investigation had been sought

promptly, once the accused had been charged. That case was to be contrasted with the Bowes case where the Supreme Court

upheld the High Court’s refusal to prohibit the trial of an applicant on a charge of possession of drugs with intent to supply where

drugs had been found in the boot of a car which the accused had been driving. On the eve of the trial, an application was made to

inspect the car and judicial review proceedings commenced when it emerged that the car was no longer available. The critical point of

distinction was not simply the timing of the application, (Braddish itself, after all, had dealt with an application made after a first trial

had collapsed), but that the court took a searching and sceptical view of the likelihood that any forensic investigation of the car

could have assisted the accused where there was no doubt that the accused had been driving the car and where he had made an

inculpatory statement. This was the first indication of the subsequently repeated requirement that the accused was obliged to

engage with the facts of the case against him or her in order to demonstrate the relevance and significance of the evidence alleged

to be missing. Subsequent cases have enlarged upon this obligation.

In Mitchell [2000] 2 ILRM 396, (High Court, Geoghegan J) an incident had occurred in the Temple Bar area of Dublin but the gardaí had

not sought to obtain either the footage from the garda video recording system in the area, or CCTV footage from a nearby private

restaurant. Geoghegan J considered that it was going too far to say that the prosecution must be prohibited where such steps were

not taken, because in the particular case, the gardaí were entitled to accept that there was nothing useful on the CCTV camera in

the restaurant and it could not be said that there was an obligation to seek and retain CCTV footage every time an incident occurred

in a street. Scully [2003] IEHC 92 (High Court) and [2005] 1 IR 242 (Supreme Court) was a further important case on the significance

of CCTV footage. There, the proprietor of a filling station had been assaulted as he locked up his premises for the night. There was a

CCTV camera in operation. The gardaí viewed the tapes, but concluded that the camera did not cover the area of the alleged assault,

was of poor quality and was of no evidential value. In the High Court Kearns J (as he then was), rejected the application for

prohibition. He said:

“This judgment (Mitchell) and the recent decision of the Supreme Court in McKeown reinforces my own view that some

sort of commonsense parameters of reasonable practicality must govern any determination of the scope of the duty on

the Gardaí when seeking out or preserving evidence. This must of necessity imply that some margin of appreciation be

extended to Gardaí when investigating crime to determine what they may reasonably consider to have some possible

relevance in establishing guilt or innocence. What is the alternative? Is it for the accused person or his legal advisers to

dictate the parameters? Alternatively, must the Gardaí go on seeking out and preserving any and every possible piece of

evidence which might, by the remotest chance, admit of being relevant in some fashion in a subsequent trial? I think

not. To set the bar too high for Gardaí in seeking out and/or preserving evidence is more likely in my opinion to frustrate

the administration of justice and due process than to uphold it.”

On appeal, the Supreme Court upheld the decision, essentially on the basis that there had been undue delay in making the

application, something which was particularly relevant in this type of case. As Mr Justice Hardiman in the Supreme Court pointed out:

“Delay is significant not so much for its bare length (in this case, for instance, it was considerably less than the

unexplained delay in commencing the prosecution) but for the indication that it provides that the case was based on a

“remote fanciful or theoretical” possibility, rather than a real desire to obtain evidence believed to be potentially

exculpatory. To put this another way, all the Applicant has done here is merely to invoke the possibility that exculpatory

evidence at one time existed, and that there was something visible on the video, despite the new evidence. He must do

more than that. In the words of Finlay CJ in Z v Director of Public Prosecutions [1994] 2 IR 476 at page 507 he must

“establish a real risk of an unfair trial”. The importance of the first adjective in this phrase is that it excludes a risk which

is merely remote, fanciful or theoretical. The need to meet this requirement involves much greater engagement with

the actual state of the evidence than is apparent here. The applicant’s case did not at all engage with the facts provided

in the initial statements in April 2003, but simply considered them as irrelevant. This omission represents a flight in to

unreality.”

Hardiman J upheld the decision of the High Court, observing however that:

“The prosecution are fortunate that, in this case, the view which the gardaí formed is independently corroborated and is

unchallenged.”

It is true that Hardiman J did suggest that as a general rule videos should be preserved:

“It seems both prudent and fair to preserve a video tape: the expense or inconvenience of doing so is minimal and the

facts of another case might well lead to a different result following a decision to dispose of a video tape”.

However, this sensible advice does not assist the resolution of the present case, where the footage was beyond retrieval, and the

case itself had been commenced, before the judgment in Scully was delivered.

In Fagan v Judges of the Circuit Criminal Court & DPP [2006] IEHC 151, Dunne J in the High Court rejected another challenge based

on absent CCTV evidence. In that case, the applicant had been identified from CCTV footage. The gardaí had sought a copy of the

footage but unfortunately the disk which was believed to contain the copy footage turned out to be blank. When a further effort was

made to obtain a copy, it was discovered that the hard disk had been overwritten. It should be said, that from the decided cases it

appears that the fact that such hard disks are routinely overwritten is an established feature of the technology of CCTV cameras, at

least during this period. There was however a statement by the accused admitting his involvement. Once again, prohibition was

refused on the grounds of delay, but Dunne J also considered the substance of the applicant’s case. She rejected the applicant’s

claim concluding:

“This is not a case in which it has been suggested that there is a real issue as to the admissibility of the memorandum

of interview furnished by the applicant to the gardaí. It might well be that a memorandum of interview may be found to

be inadmissible. However this is not like the situation in the Braddish case where it was clear that the confession in that

case was hotly disputed. It is in that context that it appears to me that Ms McDonagh is correct in her submission that

the applicant herein has failed to engage with the evidence in this case. Looking at the overall situation herein it seems

to me that this is a case in which leave has been sought to prohibit the trial by virtue of the happenstance that the

CCTV footage is missing rather than an attempt to show that the applicant has been deprived of a fair trial by the

absence of critical missing evidence. I feel that my view in this regard is supported by the fact that such an application

was brought only on the eve of trial and accordingly it seems to me to have the characteristics of an application made

for the purpose of “tripping up the investigators in discovery of the evidence” as described by Hardiman J in the Scully

case.”

The pattern emerging from the jurisprudence can also be illustrated by two cases in which applicants succeeded. In Ludlow v The

Director of Public Prosecutions & O’Shea [2009] 1 IR 640 the applicant was accused of dangerous driving causing death. A major part

of the case against the applicant was the allegation that the tyres of the vehicle which he was driving were excessively worn.

However, the vehicle was released by the gardaí to the applicant’s employer who disposed of the tyres before they could be

inspected on behalf of the applicant. The applicant’s claim to prohibit the trial succeeded both in the High Court and on appeal.

McHugh v Director of Public Prosecutions [2009] IESC 15 concerned a charge of stealing from a Lidl store. The accused had been

identified only after the gardaí and the staff reviewed CCTV footage. That footage, however, which was central to the case, was no

longer available. Nevertheless the gardaí proposed to give identification evidence by reference to the now non existent CCTV footage

and by proffering some still photographs which had been preserved from the CCTV footage. The Court reviewed the photographs, and

concluded that they did not permit any conclusion to be reached as to whether or not the accused had engaged in the activity

alleged. Accordingly, the Supreme Court was prepared to uphold the High Court’s decision to prohibit the trial. In this case, as in the

Ludlow case, there is an engagement with the facts of the case and a close and searching analysis of the manner in which the

absent evidence might affect the trial. Even then, it is to be noted, that in the subsequent case of CD v DPP [2009] IESC 70, Fennelly

J observed of McHugh, that “at this point, on reflection, I wonder whether even that case could not properly have been left of the

basis that it would be unfair to admit evidence of identification from unavailable CCTV footage, which would be a matter for the trial

judge”.

In the CD case by contrast, the Supreme Court refused to prohibit a trial of an incident which was alleged to have occurred in a

matter of seconds in a public place, and where the Applicant complained that although the gardaí had retained certain video evidence

they had not obtained footage from one camera which, it was alleged, supplied a better angle. At paragraph 24, Fennelly J said:

“As has been emphasised many times, this type of application must be considered in the context of all the evidence

likely to be put forward at the trial. The key question whether there is a real risk of an unfair trial cannot be viewed in

vacuo evidence. Evidence is never perfect. Neither the prosecution nor the defence can be assured that all conceivable

evidence will be available.”

Having reviewed the jurisprudence Fennelly J concluded that the relief sought was exceptional:

“It follows that the relief of prohibition of a pending trial can only arise exceptionally (see DC v DPP [2006] ILRM 348, per

Denham J; McFarlane v DPP [2008] IESC 7, per Kearns J) these were admittedly delay cases. However, I think the same

principle must apply. I stated in my dissenting judgment in Dunne v Director of Public Prosecutions [2002] 3 IR 305 that

it would require something exceptional to persuade a court to intervene and prevent a criminal trial from taking place.”

In my view, having considered the decided cases, the position has now been reached where it can be said that other than perhaps

the very straight forward type of Braddish case, it would now require something exceptional to persuade a court to prohibit a trial.

This in my view is in accordance with principle. The point was made in McFarlane v DPP & Special Criminal Court [2007] 1 IR 134 that

the fact that an applicant was unsuccessful in judicial review proceedings did not detract from the power and duty of a court of trial

to assess the case developed at the trial. At paragraph 34 of his judgment Hardiman J, (with Murray CJ, Geoghegan and Fennelly JJ

agreed) stated that the court of trial “will be able to assess whether there is indeed a prima facie case at the appropriate stage.

More than that it will be able to assess, on the evidence as it actually develops, whether there is any unfairness to the applicant,

incapable of remedy by the trial court, for which the prosecution is responsible. Its powers in this regard are wholly unaffected by

the result of the present applicant.”

This in my view, is an important observation. The constitutional right the infringement of which is alleged to ground an applicant’s

entitlement to prohibit a trial, is the right to fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution. The

manner in which the Constitution contemplates that a fair trial is normally guaranteed, is through the trial and if necessary appeal

processes of the Courts established under the Constitution. The primary onus of ensuring that that right is vindicated lies on the

court of trial which will itself be a court established under the Constitution and obliged to administer justice pursuant to Article 34. It

is in my view therefore, entirely consistent with the constitutional order, to observe that it will only be in exceptional cases, that

Superior Courts should intervene and prohibit a trial, particularly on the basis that evidence is sought to be adduced( in the case of

video stills), or is not available (in the case of CCTV evidence itself).

The modern law is, I consider, set out and synthesised in a judgment of Fennelly J in Savage v Director of Public Prosecutions [2009]

1 IR 185, in a passage with which Hardiman J expressed agreement:

“(a) It is the duty of the prosecution authorities, in particular An Garda Síochána, to preserve and maintain all evidence,

which comes into their possession, having a bearing or potential bearing on the issue of guilt or innocence of the

accused. This duty flows from the unique and investigative role of the police force (see Braddish v DPP [2001] 3 IR 127).

The extent to which that duty extends to seeking out evidential material not in the possession of the gardaí does not

arise in the present case (but see Dunne v Director of Public Prosecutions [2002] 2 IR 305).

(b) The missing evidence in question must be such as to give rise to a real possibility that, in its absence, the accused

will be unable to advance a point material to his defence. This is, like the garda obligation to retain and preserve

evidence, to be interpreted in a practical and realistic way and “no remote, theoretical or fanciful possibility will lead to

the prohibition of a trial.”(See Dunne v Director of Public Prosecutions [2002] 2 IR 305 at page 323).

(c) The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to

establish the guilt of the accused does not preclude the making of an order of prohibition. In Dunne v Director of Public

Prosecutions [2002] 2 IR 305, the prosecution intended to rely on a confession. This did not defeat the applicant’s

complaint of the failure of the gardaí to take possession of a video tape covering the scene of the robbery.

(d) The application is considered in the context of all the evidence likely to be put forward at the trial. The court will

have regard to the extent to which aspects of the prosecution case are contested. In Bowes v Director of Public

Prosecutions [2003] 2 IR 25, the fact that the motor car in which the applicant was alleged to have been travelling had

been lost by the gardaí was insufficient, when the applicant did not contest the fact that he was driving it and the

charge related to possession of drugs found in the boot of the car. In a second applicant’s appeal in Bowes, the court

had regard to the “circumstantial” character of the prosecution case of dangerous driving. In McFarlane v Director of

Public Prosecutions [2006] IESC 11 [2007] 1 IR 134, the existence of photographic evidence of the missing fingerprints

was highly material to the complaint that the original items had been lost by the gardaí.

(e) The applicant must show, by reference to the case to be made by the prosecution, in effect the book of evidence,

how the allegedly missing evidence will affect the fairness of his trial. Hardiman J said in McFarlane v Director of Public

Prosecutions [2006] IESC 11 [2007] 1 IR 134 at page 144, that:

“In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the

evidence actually available so as to make the risk apparent.”

(f) Whether the applicant, through his solicitor or otherwise makes a timely request to the prosecution for access to or

an opportunity to have the article issue expertly examined may be highly material. In Bowes V Director of Public

Prosecutions [2003] 2 IR 25 the “very belated” request was critical to the refusal of relief. On the other hand in Dunne v

Director of Public Prosecutions [2002] 2 IR 305, no request was made until some five months after charge, and long

after there was any possibility of producing a video tape. In that case, however Hardiman J stated at page 325:-

“There is ... a responsibility on a defendant’s advisers, with their special knowledge and information, to request material

thought by them to be relevant.”

However a suspect or an accused person will be unable to make a timely request, if the gardaí have destroyed or parted

with possession of the material. Thus, they must give consideration to the likely interests of the defence performing

against such decisions.

(g) The essential question, at all times, is whether there is a real risk of an unfair trial. (See Scully v Director of Public

Prosecutions [2005] IESC 11, [2005] 1 IR 242). The court should focus on that issue and “not on whose fault it is that

the evidence is missing, and what the degree of that fault may be”. (See Dunne v Director of Public Prosecutions [2002]

3 IR 305 at page 322).”

Applying these principles to the present case, it seems to me clear that this is not a case in which it can be said that the alleged

missing evidence is central to the case being made by the prosecution. Unlike Braddish and Ludlow, the CCTV evidence here is not the

basis of the identification of the accused. On the contrary, there was direct evidence from witnesses placing the accused at the

scene. Indeed, he was arrested there by Garda Enright and his colleague, who both witnessed him being abusive to Mr Hamid. It can

also be said, with some justice, that the Applicant has wholly failed to engage with the specifics of the case made. This is particularly

telling in the present case, since it is by no means self-evident how, as a matter of reality, the missing evidence could assist the case

the accused wished to make. It is certainly not for the Court to hypothesise as to what possible version of the case the CCTV’s

footage might support.

It is also relevant in my view, that the trial court retains the discretion to exclude the still photographs if the court comes to the

conclusion that producing them in the absence of the original video evidence would be unfair to the accused. This was the course

taken by the Circuit Court in the first Braddish trial, and which was considered by Fennelly J in CD, and is a specific example of the

power, and indeed duty, of the trial court adverted to by this Court in McFarlane. That is not to say that this evidence ought to be

excluded in this case: as Fennelly J observed in CD, that is entirely a matter for the trial judge. But the fact that such a course is at

least open to a trial court is, in my view, highly relevant to the calculation which this Court is asked to make as to whether or not to

grant the exceptional remedy of prohibition. Assuming that a trial judge did consider that the admission of the still photographs would

be unfair, then the exclusion of that evidence would be a situation which was entirely in favour of the accused, since the absence of

the CCTV evidence would have resulted in the exclusion of part of the prosecution case, and therefore and by definition, matters

thought to be inculpatory of the accused. Given the existence of the power to exclude the still photographs it would then be

necessary for the accused to speculate, that even then, the absence of the CCTV evidence could still unfair because the absent

footage might nevertheless support a positive case to be made by the accused, which would exculpate him. On the evidence so far

before this Court, that is a speculation which can properly be described as both remote and fanciful, and the absence of any real

engagement of the accused with the facts of this case comes in to even starker relief.

It is furthermore relevant to this assessment that the evidence of the gardaí as to the steps taken to secure the evidence has not

been challenged either by replying affidavit, or by cross-examination. On that uncontested evidence therefore, this is not a case of

inaction or incompetence on the part of the gardaí. Garda Enright sought to copy the CCTV footage. He was told that facility was not

available. That evidence is unchallenged. He did obtain what was available at the time in the form of photographic stills. When more

information was sought, the gardaí returned and sought to make a copy but at that time the disk had been overwritten. Significantly,

there was no evidence of the state of technology in 2004 (which is the relevant date). We do not know if technology was readily

available to make copies in the absence of a facility to burn a CD and we do not know how disruptive such process might have been,

or how soon after the incident it would have been necessary to seek to make such a copy. Finally, in this regard, while the majority

decision in Dunne establishes that no clear and definite distinction can be made between those cases in which evidence has been

obtained by the gardaí and then mislaid or released, and those where the evidence has not been obtained in the first place, that does

not mean that that distinction is not relevant to the assessment the Court must make. The duty to seek out and preserve evidence,

is one which must, on all the authorities, be interpreted realistically. In that context, the fact the gardaí have never had the

particular evidence in their possession, but made efforts to obtain it, is relevant in the assessment of the case made. To adopt the

words of Geoghegan J in Mitchell, it would in my view be going too far to prohibit this trial on the grounds the gardaí ought to have

taken some unspecified steps at an unspecified time to secure more by way of evidence than Garda Enright had. Therefore, while

there is no doubt that the Applicant’s solicitors acted promptly in seeking the CCTV evidence, as well as the statements and other

pieces of documentary evidence, it appears to me that the substance of the Applicant’s case has not advanced much beyond the “no

video – no prosecution” case stigmatised by Dunne J in Fagan, and accordingly, in my view, Murphy J was entirely correct to reject

the applicant’s claim.

In light of the conclusions set out above I hesitate to add anything to the already substantial jurisprudence on missing evidence

which has accumulated over the past decade. I am however struck by the fact that the summary trial of this relatively minor offence

has now been delayed for more than six years simply because of this challenge. In the event, the order of this case is that the trial

should proceed, a trial which will necessarily be conducted in accordance with constitutional fairness. But it can scarcely be doubted

that the trial of such an incident after the passage of such a lengthy period of time is less than the ideal envisaged by the

Constitution when it contemplated courts of local and limited jurisdiction. Furthermore, if it should happen that the trial was hampered

or even frustrated by the unavailability or absence of witnesses due to the passage of time, then that will fall some way short of the

administration of justice to which the public are entitled.

It is a salutary reminder of the impact of the statements made in the judgments of the Superior Courts that two lines of authority

which have occupied a substantial part of the judicial review lists of the High Court and the lists of this Court on appeal – delay and

missing evidence cases – can be traced back to a single observation, itself not apparently the subject of any detailed argument, in

The State (O’Connell) v Fawsitt [1986] IR 362, to the effect that judicial review is the appropriate remedy where a challenge is

brought (in that case on grounds of delay) to an anticipated trial on indictment in the Circuit Court. Whether that is necessarily so,

and whether indeed, the appropriate test for prohibition of a pending trial in a court established under the Constitution is the

existence, on the balance of probabilities, of a “real risk” of an unfair trial, are matters which might deserve further consideration. It is

noteworthy however that the Court in The State (O’Connell) v Fawsitt, expressly limited its decision to the case of trial on indictment.

The judgment accepted that in the case of summary trials, it may well be that an equal or alternative remedy would be an application

to the judge to dismiss on grounds of delay , which was the issue in that case , but the same must apply in the case of an allegation

of unfairness created by the absence of crucial evidence. Such a course is not however without its own difficulties, as the decisions

on abuse of process in the neighbouring jurisdictions have shown, (see: Valentine, Criminal Procedure in Northern Ireland, 2nd Edition

2010, page 285 ff), and the decision in DPP v O’C 2006 IESC 54 makes it clear that no abuse of the process challenge can be brought

, at least in the Central Criminal Court . But the application for dismiss of a summary trial contemplated in The State (O’Connell) v

Fawsitt would not only be an alternative remedy , but one which, at least potentially, would be both speedier and cheaper than an

application to the High Court for judicial review. It might also have the not insignificant benefit of permitting the issue of the fairness

of the trial to be determined by the court of trial of the particular case, a court with unrivalled experience of similar trials and indeed

the court with the Constitutional obligation of ensuring a fair trial. In 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.