The Gazette 1995

GAZKTTKD

MBER1995

bill to the hirer. When the bill was

paid, the printout would be stored on

microfiche. The evidence was deemed

admissible at trial and on appeal. The

court would seem to have taken the

approach that because of the automatic

nature of the process, the statement

was not hearsay, although they would

still have found it admissible as such

(under statutory provisions). Evidence

as to the proper functioning of the

computer was given, (although an issue

was raised unsuccessfully on appeal as

to the competence of the witness

concerned to so testify).'A commentary

in the Criminal Law Review, suggests

such testimony would have been

necessary in either the event of the

evidence being real or hearsay.

"There is no reason of principle for

distinguishing between admissible

hearsay and non-hearsay statements

offered as evidence of a fact stated

therein. Each is equally vulnerable to

improper use or improper operation of

the computer. "

R v Spiby

concerned the admissibility

of a computer printout from a

telephone logging system in a hotel

that automatically recorded the hotel

room from which the call was made,

external line used, date, time and

duration of the call, number to which

the call was made and the charges for

the call. The Court of Appeal decided

that the printout was real evidence, and

made the point, that the inherent

difference about purely computer

generated evidence is that the computer

generated evidence is not subject to

human error and thus is real evidence.

Here the Court of Appeal accepted the

evidence of the hotel manager that the

computer system was working

properly.

R v ShephercT,

the House of Lords

considered the issue in the case of Ms.

Shepherd who was convicted of

stealing food and clothing items from a

Marks & Spencer store. Evidence was

offered of the till rolls from the store's

sales on that day. The tills were

connected by a central computer,

which recorded and stored information

as sales were made. The Court of

Appeal considered the till rolls to be

computer evidence, and felt that given

the breadth of the statutory definition

'even an old fashioned cash register

would have to be treated as a

computer', although neither that court

nor the House of Lords decided that the

till rolls were computers. The till rolls

were operated by hand and not all that

different from an old fashioned cash

register, with certainly a large margin

of human error possible, which

Nyssens suggests could have been

brought to light, as a factor in deciding

what is and is not a computer. The

Court of Appeal had taken evidence

! from a security guard who had

examined the till rolls, that the

computer was operating properly. The

House of Lords considered whether he

was properly qualified to so testify, and

concluded that he was at least as

qualified and familiar with the system

| as the manager in

Spiby.

Although the Court of Appeal

recognised the risk of computer error,

and held that even purely computer

generated evidence should be subject

to verification that the computer was

operating properly, and to that extent

overruled

Spiby.

It is unfortunate that

neither it nor the House of Lords took

the opportunity to clarify whether the

evidence

was

produced by a computer,

and what evidence there was to show it

| was functioning properly.

R v Cochrane

comes closer to

! resolving the issue of what

' qualification should be required in

order for an expert to testify about the

functioning of a computer. The facts

here concerned a building society

inadvertently crediting C's account

with more than he had paid in. A

number of withdrawals were made

before the error was discovered -

computer printouts or till rolls were

admitted in evidence at trial the

question arose on appeal as to

whether there was a need for the

Crown to produce expert evidence

of each stage of the mode of

operation of the computers involved in

each transaction. Two computers were

involved here: the cash point

machine and the mainframe computer.

None of the Crown witnesses knew

I anything about the working of the

I latter. The Crown had therefore failed

to adduce adequate evidence to

enable the Court to properly rule that

the till rolls were admissible evidence;

| and in the absence of the till rolls the j

Crown's case could not be proved. In a

commentary in the Criminal Law

Review,

the point is made that the

Court is not in a position to take

j judicial notice of the way in which a

complex instrument such as a

computer functions, and so it may be

| necessary for a foundation to be laid

for the admission of a document by

| producing evidence as to the nature of

the functions of the computer. Since

the evidence in this case failed to

! surmount this initial hurdle, the

court was in no position to go on

! to the next question of whether the

relevant statutory provisions

(section 69 of the Police and

Criminal Evidence Act 1984 - PACE)

applied to computer evidence of this

type, or whether it is to be dealt

with by application of the common

law presumption that mechanical

! devices may be assumed to be

i working properly.

3. Admissibility of Documentary

Evidence under the Criminal

Evidence Act 1992.

So what of the provisions of common

law and statute in Ireland regarding the |

admissibility of machine or computer-

Í generated evidence? Irish law does not

contain any specific provisions relating

to computer evidence. Computer

generated evidence is subsumed under

documentary evidence, to the extent

that it comprises business records. It is

interesting to note that Tapper

queries

whether the best solution might indeed

not be to introduce a regime where

there is no distinction between manual

and computer records or business and

private documents. Currently although

Irish law makes no separate provision

for computer documents, the

i distinction between business and

j private documents is central to the

1992 Act.

Part II of the Criminal Evidence Act

1992 introduced changes governing the

| admissibility of documentary evidence

I in criminal proceedings. The

! interpretation section of that Act,

section 2, defines document to

include:

'(I) map, plan, graph, drawing,

photograph

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