High Court gives disappointing decision on video surveillance

In Atherton v. DPP the High Court has considered, apparently for the first time, the admissibility of evidence obtained by video surveillance.

The case concerned a defendant accused of damaging a neighbour's hedge. The neighbour resorted to video surveillance to catch the perpetrator, and placed a video camera in an upstairs window of a house across the street. From there, the camera recorded the neighbour's front garden, but also the front garden, driveway, door and windows of the defendant's adjoining semi-detached house.

The defendant argued that the resulting video footage of him was obtained unlawfully and in breach of his constitutional rights, particularly where it involved surveillance of his dwelling. This was rejected, however, by Peart J. who held that:

I am satisfied that the taking of video footage of the hedge and in so doing the front of the accused’s house is not an act which constitutes an unconstitutional invasion of the right to privacy as contended by Mr O’Higgins. First of all, it is obvious that the front of the accused’s house is something which is visible from the public road – perhaps only with the use of a ladder, but nonetheless visible. It is certainly visible from the upstairs of the house opposite, from which the footage was taken. In my view there is no meaningful distinction between the evidence of what was happening to the hedge in the garden opposite that house being given in the form of video footage, and that very same evidence being given by the owner of the house opposite if he arranged things so that he was standing at the same window as the camera was set up at and observing himself what was happening. He would undoubtedly be permitted to give evidence viva voce of anything which he observed happening in the garden into which he was looking, and it could not possibly be seriously contended that if that person also saw the accused re-entering his house through the front door, and while the door was open saw also into the hallway, that in some way that person had breached the accused’s right to privacy by seeing what he saw. The camera has done no more and no less than that.

Of course, a different view might easily be taken if the act of setting up the camera in the required position involved a trespass upon the property of the person to be observed. That is a different matter altogether. But that is not the position in this case. The point was made by Mr O’Higgins that this camera in the way it was set up had the capacity to see into rooms at the front of the accused’s house if the curtains were open. But in my view the problem with that submission is that the same arises if a person were to place himself at the window opposite and in the event that the owner happened to leave the curtains open.

I do not believe either that the accused’s application is assisted by the evidence given by the Garda that up to 70% of the footage contained in the frame of the video is taken up with the front of the accused’s house, rather than the hedge itself. One way or another I cannot see that there has been any breach of the accused’s right of privacy in relation to his dwelling and its curtilage – especially in the absence of any trespass or other unlawfulness. It is not necessary in these circumstances to consider whether the balancing of the rights was correctly undertaken by the District Judge was correctly carried out. There simply has been no breach as far as I can see, and therefore no justification of a breach need be investigated and considered.

This judgment is unusual, to say the least, and it is significant that no authority is cited by Peart J. for his ruling. Three points are particularly problematic. First, it relies on the fact that the area was visible from the public road (with the aid of a ladder!) or from the facing houses to deny that any privacy interest existed. This approach is entirely inconsistent with the caselaw of the European Court of Human Rights which made it clear in Peck v. the United Kingdom that privacy rights could subsist even in respect of CCTV footage of public areas. Secondly, it focuses on the fact that there was no trespass to the defendant's property. It is unclear, however, why this should be relevant. The tort of trespass deals with property rights - not privacy rights. Whether there is a physical invasion of the defendant's space should not be determinative. Indeed, the "trespass doctrine" has, after an ignoble history, been long since abandoned in the United States - see Katz v. United States, and there is no apparent reason why it should be resurrected here. Finally, the decision equates video surveillance with the view of a person who might place themselves at the window. This is to overlook, however, the pervasive and permanent nature of video surveillance - there is a qualitative difference between occasional transient views and continuous, permanently recorded, surveillance.

Instead, this appears to be a case where a balancing exercise would have been appropriate: and such a balancing exercise would probably have come to the same conclusion - that the video surveillance was not especially intrusive and was justified in the circumstances. By denying that any privacy right exists, however, the court sets an undesirable precedent.

[It may be worth contrasting this decision with the views of the Data Protection Commissioner in respect of CCTV cameras on the Luas line. In that case it was accepted that there was a breach of the Data Protection Acts where back gardens were being monitored by the Luas CCTV cameras. While there is certainly a greater expectation of privacy in a back garden, those gardens were presumably visible by travellers on the Luas line, which would have ruled out any privacy interest if we were to apply the reasoning of Peart J.]

Update (16/8/2007): Eoin Carolan has a very interesting piece in the Dublin University Law Journal ("Stars of Citizen TV" (2006) 13(1) DULJ 326) discussing Atherton.