The Gazette 1995

GAZETTE

DECEMBER 1995

to facilitate the identification of the

accused by police officers previously

acquainted with the accused. Although

the claim that the evidence should have

been excluded was unsuccessful, it was

held that the same warnings that would

| apply to visual identification evidence

i should be given in relation to video, so

that the evidence could be excluded

under PACE, if it would adversely

affect the fairness of the proceedings.

The Court was also of the view that

| procedures should be instituted for

! regulating video showings where there

i are already known suspects. In

R v

Bailey & Smith

evidence obtained by

I the use of listening equipment was at

issue. The accused here exercised their

right to silence, and were placed in a

j cell together where listening equipment

had been installed. The police acted as

if their placement together was not

desired and occurred because of an

! unco-operative custody officer. The

I evidence was not excluded here,

PACE seeming to have made little

difference to the traditional attitude of |

[ the English courts to the exclusion of

evidence because of the

manner

! which it was obtained. (

R v Mason

was distinct in that the trick was played

on the solicitor also). It is questionable

! however, whether the Irish courts

would prove so sanguine.

4. Future Developments:

'Image-based' Evidence

Future developments in this area will

inevitably impact on the ability of the

rules of evidence to cope with ever

more complex means of producing,

translating and interpreting

information. Computer-generated

hypothetical re-enactment of the

killings in the

O.J. Simpson

case have

been produced by a Californian

company for instance, and although not

actually used in that case, it is believed

to be the first time the technology has

been produced in connection with a

murder trial.

The development of electronic means

of obtaining imagery of scenes or

events has led to a significant increase

in the use of

imagery derived evidence

in court. Because of the emergence of

new ways of recording events,

"imagery" has replaced "photography"

in referring to evidence that is given

from pictorial records such as

photographs, tv, video, low level

systems and infra-red cameras. Since

many pictures that could be used in the

detection of an offence and the

prosecution of an offender are of poor

quality, as a result perhaps of incorrect

siting, operation or maintenance of the

camera, imagery enhancement devices

are available and these can be used to

improve important aspects in the

picture. Software for enhancement is

easily handled these days within PCs.

Once the enhancement is completed,

high quality laser printers provide

photographic quality hardcopy. Yet

again in this area a challenge is posed

not simply in terms of admissibility,

but also the ability of the legal

adversaries and the system itself to

query, interpret and adjudge the

material. In a recent article in the

New Law Journal

, an expert in the

area warns:

"Using enhanced pictures to provide

evidence has distinct dangers. It is

possible, but difficult, to falsify

photographic negatives but since

enhanced imagery is now handled in

digital form, it is comparatively easy

to rearrange pixels, make some

disappear and create others. Thus

features like moles on a person's face

can be removed or falsely "painted"

on. Moreover, distances and

perspective can be altered making a

short, fat person look taller and

thinner and so on. . . The important

safeguard however is to preserve the

original in certified form. Given that

this is done, a skilled imagery

analyst should be able to replicate the

effect and validate or negate the

evidence."

Making the point that the science of

imagery analysis is in the same

category as forensic science, the author

warns that it requires human judgment

and thinking power to extract relevant

evidence and states that attempts to

automate this process have been

largely unsuccessful. The following

comments of that author might well

have emanated from a lawyer,

providing a neat assimilation of science

and law:

"In a balanced system of justice, there

is clearly a need to give to the defence

the same expert imagery support, as

enjoyed by the prosecution; so that

evidence may be both produced or

challenged where appropriate.

In forensic work, the opinions and

findings of one expert may not be the

same as those of another expert

looking at the case from a different

perspective and perhaps using different

methodology. Imagery analysis

sometimes requires similar judgment

and it is sensible to obtain an

independent second opinion."

Coupled with all these difficulties is

the fact that the extensive police

powers which are and will continue to

be necessary in the fight against

computer generated crime, involve

extensive powers of search and seizure

and inevitable problems of proof, for

instance in the realm of 'computer

pornography' (use of electronic means

by which indecent, obscene or

pornographic images may be stored,

transmitted and viewed). The

implications of same for the

constitutionally mandated role of the

Irish courts in the protection and

vindication of individual rights (a duty

superior to that of crime control-

witness the statement by

Finlay C.J. In

D.P.P. v Kenny

'") remain to be tested,

and may well provide a focus for the

future clash of the concerns and

cultures of the legal and scientific

worlds.

5. Summary

Nyssens

summarises the issues

involved in our courts' approach to

computer-generated evidence as

follows:

"There are a number of preliminary

questions that the court must pose

before moving on to consider the facts

revealed by computer generated

evidence. The nature of machine-

generated evidence is different than

that produced by a human being. Real

computer evidence can be considered

protected from the element of human

error; evidence which has a human

source or role in processing is only as

good as the people involved."

Either way she contends that it is

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