Private CCTV footage, which the State says links Frederick 'Freddie' Thompson to a murder, breaches the accused's right to privacy as it was obtained unlawfully by the property owners, the Special Criminal Court has heard.
Michael O’Higgins SC, for Mr Thompson, made a submission to the non-jury court on Monday on why the footage should be deemed inadmissible.
Mr Thompson (37), with an address at Loreto Road, Maryland, Dublin, has pleaded not guilty to the murder of shoe shop manager David Douglas on July 1st, 2016 on Bridgefoot Street in Dublin.
The 55-year-old was shot six times shortly after 4pm, as he took a meal break at the counter in his partner’s shop, Shoestown. A semi-automatic pistol with its serial number removed was found next to his head.
The prosecution does not argue that Mr Thompson carried out the actual shooting, but the three judges have heard that his DNA was found in two alleged ‘spotter’ cars used in the shooting.
Two detectives also identified him in CCTV footage as the driver of one of the cars that afternoon.
The court heard last week from dozens of property owners and managers, whose private CCTV footage was used in the investigation.
Mr O’Higgins cross examined many of them on whether their systems were registered with the Data Protection Commissioner and whether they had signs in place warning that CCTV was in operation. They had either not registered their systems or were unaware of an obligation to do so. Most also had no warning signs erected.
Mr O’Higgins told the three judges on Monday why he believed the footage should not be admitted into evidence.
‘Illegally created’
“The law is not being complied with and the guards are getting the benefit of illegally created evidence,” he said. “I’m asking the court to make the following adjudication: that the evidence was all illegally created, that the guards are aware of this and the effect of making the recordings is in breach of my client’s rights, if the prosecution prove it was him.”
He said the “guards are aware and are drawing from a well that is contaminated...The well includes a breach of the citizen’s right to privacy”.
He acknowledged that this was not an absolute right. However, he said that the legislature had struck a balance, but that the law was not being enforced.
Seán Gillane SC, prosecuting, said in reply that there was not an authority in the western world supporting what Mr O’Higgins was asking the court to do.
“It is also an argument without any authority, and there’s good reason for that in circumstances where we’ve been living with ubiquitous CCTV systems for decades,” he said.
He said that here could be no reasonable expectation of privacy in the circumstances.
Replying to the defence’s citing of the Digital Rights Case, he said that it was concerned about storing information about people.
“Here they weren’t storing it. They were deleting it,” he said of the private CCTV owners. “It disappears unless the guards go get it and the Supreme Court is repeatedly telling them they must go get it.”
He said that, according to the defence’s argument, crime should no longer be committed behind closed doors.
“Stand under the camera and do it there because the EU says privacy rights have been breached,” he said, pointing to what he described as an illogical argument.
“The system would fall into disrepute.”
Mr Justice Tony Hunt, presiding, with Judge Flannan Brennan and Judge Gerard Griffin will give their decision on the issue on Wednesday.