An Garda Síochána is “not a surrogate” for the Data Protection Commissioner and gardaí have an inescapable legal obligation to seize CCTV footage when investigating crime, a barrister has told the Special Criminal Court.
Prosecution Counsel made the submission today in the trial of Liam Brannigan (37), from Bride Street, Dublin 8, who is charged with conspiring to murder Gary Hanley at a location within the State between September 15 and November 6, 2017.
The accused has pleaded not guilty.
Seán Gillane SC, for the State, was speaking in response to submissions made by Mr Brannigan’s legal team yesterday in which they sought to have CCTV footage and audio recordings from a surveillance operation to be excluded from the trial.
The court has already heard that gardaí collected 3,500 hours of CCTV footage from businesses across Dublin and concealed secret listening devices in several cars as part of the investigation.
Mr Gillane opened the trial two weeks ago saying that the prosecution will use CCTV and audio recordings to prove Mr Brannigan was "fully knowing of the plot" to kill Mr Hanley.
It also heard the officer in charge of directing the collection of the CCTV said "no" when he was asked last week by John Berry BL, for Mr Brannigan, if gardaí checked to see if the business's CCTV systems were registered with the Data Protection Commissioner, in accordance with the law.
Giollaiosa O Lideadha SC, for Mr Brannigan, argued yesterday that An Garda Síochána had unlawfully turned Dublin city’s CCTV infrastructure into a “de facto surveillance operation”.
He submitted the evidence demonstrated that gardaí “procured and processed vast amounts of CCTV consciously and deliberately using the infrastructure of a variety of CCTV systems which they knew were reckless as to whether or not they operated within the law”.
Mr Brannigan’s legal team have also argued that the CCTV and audio recording material breach the accused’s privacy rights.
However, Mr Gillane told the non-jury court today that there is no evidence the accused’s privacy rights have been infringed.
He said the argument is “a contrivance, masquerading or hiding within the complexity of data protection, and the court should resist temptation to disappear down a rabbit hole”.
Mr Gillane said CCTV footage is “real evidence” and he said he’s asking the court to proceed “on the basis that what’s on the CCTV is relative, probative, material evidence”.
He added: “The Supreme Court has identified in the most explicit terms, the strongest possible terms that when it comes to real evidence, and in particular CCTV evidence, there’s a positive obligation on members of An Garda Síochána to seize it. It’s an obligation from which they cannot escape.”
Mr Gillane went on to say that if gardai didn’t obtain such CCTV footage, courts would hear arguments from barristers to the effect that “lazy guards” didn’t do their job.
He added: “Evidence of this class has been received from the District Court to the Central Criminal Court for the past 20 years without successful objection of the nature that’s taking place today.”
He also argued that the defence’s argument about collection of CCTV material from businesses not registered with the Data Protection Commissioner is a “red herring”.
Mr Gillane said the court heard evidence of private individuals, or private individuals working in commercial contexts, separately and independently of each other, maintaining CCTV systems.
He said, far from being under any State obligation, the witnesses who gave gardaí CCTV material cooperated with the authorities as any reasonable citizen would hope for in such an investigation.
Mr Gillane added: “It’s suggested that we’re a police state precisely because we’re not a police state.
“Because we don’t have a system of An Garda Síochána cameras up on every street, they rely on citizens who may do and the consequences of that is harvesting thousands of hours of footage - because it can only be done on that basis.”
He said An Garda Síochána is “not a surrogate” for the Data Protection Commissioner.
“An Garda Síochána can only be judged on the rules that govern them in relation to gathering evidence.”
He also told the court: “Can what was captured be called personal data at all? The court has observed footage. On some of the footage, it’s plain there’s no visible human being.”
Mr Gillane argued that the defence’s claim that Mr Brannigan’s constitutional right to privacy would be infringed by the court seeing the CCTV footage “doesn’t get out of the traps”.
He also told the court that the right to privacy is “on a scale” and that the closer one gets to a criminal offence, the lesser that person has to the right to privacy.
He asked the court to consider a hypothetical situation in which a burglar breaks into a home, finds a man murdering a woman and reports this.
Mr Gillane said: “Can that accused rely on privacy rights in a trial to say ‘the burglar violated my privacy rights’? Does that mean a court can’t hear his [burglar’s] evidence?”
The trial continues tomorrow before Mr Justice Paul Coffey, presiding, alongside Judge Sinéad Ní Chúlacháin and Judge James Faughnan.