Thursday 15 November 2018

'Absurd' - Freddie Thompson fails in bid to get CCTV footage thrown out of murder trial

Freddie Thompson and (inset) David Douglas
Freddie Thompson and (inset) David Douglas

Eimear Cotter

FREDDIE Thompson has failed in his attempt to have the CCTV footage thrown out in his trial for the murder of David Douglas.

Mr Thompson’s claim that the CCTV breached his right to privacy bordered on the “absurd”, the three judge Special Criminal Court ruled.

Mr Thompson's lawyer, Michael O’Higgins SC, had also sought to have the identification of the accused from two clips of CCTV footage excluded from evidence, arguing "not even his own mother" would recognise him from the "grey blur".

Mr Justice Tony Hunt, presiding, with Judge Gerard Griffin and Judge Flann Brennan, agreed that a clip of CCTV taken on at 3.53pm at Donore Avenue was inadmissible as identification evidence because the image was “too fleeting and indistinct” to allow proper identification.

In that clip, both Detective Sergeant Adrian Whitelaw and Detective Garda Seamus O’Donovan had positively identified Mr Thompson as the driver of a silver Ford Fiesta,

However, Judge Hunt said a second clip, taken at 10.48am at Merton Avenue, was of “sufficient quality” to be admissible. In this clip, the detectives again identified the driver of the silver Ford Fiesta as Mr Thompson.

The 37-year-old, of Loreto Road, Maryland, Dublin 8, has denied the murder of David Douglas (55), who was shot six times in his partner’s shop at Bridgefoot Street, Dublin 8 on July 1, 2016.

It is the State’s case that Mr Thompson provided logistical support in the planning and execution of a murder and was the driver of one of two ‘spotter’ vehicles.

In the voir dire, the defence was seeking to have the CCTV evidence ruled as inadmissible.

Mr O’Higgins had said the Data Protection Act provided for a process of registering CCTV systems, and failure to do so was a criminal offence, He said the operators of CCTV must also alert people to the fact that recording is in place, and indicate the uses to which recording can be put.

The court has already heard from nearly 30 operators of the CCTV footage, and nearly all were unaware they should be registered with the Data Protection Commissioner.

As a result, Mr O’Higgins added, gardai were “harvesting material unlawfully obtained”. He argued that the evidence had been “illegally created”, and the CCTV was in breach of a citizen's, and his client’s, constitutional right to privacy.

Mr O’Higgins also argued that any individual’s movements, particularly in an urban area, can be readily tracked by linking CCTV cameras.

“This gives rise to an issue that it’s an invasion into one’s privacy. By walking from A to B, and subsequently looking at cameras, you can find out what a person did, where they were, who they spoke to, and it is all recorded”, said Mr O’Higgins.

In their judgement this morning, the three judge Special Criminal Court said the right to privacy was not absolute and must be balanced against other rights.

Judge Hunt said that in the particular circumstances of this case, when the allegation is of an execution type killing, common sense must weigh heavily on the mind of the court, and it cannot be said that Mr Thompson can have any “reasonable expectation of privacy”.

In light of the nature of the activities which the prosecution seeks to associate with the accused, Judge Hunt said the privacy claims of Mr Thompson “in our view, borders on the absurd”.

“No reasonable person” could expect not to be recorded on CCTV in such circumstances where they are on the street, driving or in a restaurant, the judges said.

The court ruled that, in this case, the CCTV had performed the role of “eye-witness”.

“The CCTV, no more or no less, has performed the role of eye-witness to Mr Thompson’s public conduct, if he has behaved in such a way”, the court heard

Delivering the decision, Judge Hunt said that these days it appears “both police action and inaction is equally criticised” and as a result gardai are “damned if they do and damned if they don’t”.

Judge Hunt said the task of gardai was to “gather evidence within the legal boundaries which apply to them”, and not to trouble themselves as to whether others have breached their duty in gathering that evidence.

Judge Hunt said the court had found “found no illegality or breach in An Garda Siochana’s statutory duty in gathering the CCTV evidence in this case”.

Furthermore, any suggestion that the CCTV owners had committed an offence was “offensive”, and like everyone else, they were entitled to the presumption of innocence and to their good name, the court ruled.

The trial continues.

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