Final Exam Topic:
The Irish courts have developed a duty on police to seek out and preserve relevant evidence; failure to comply with this duty may undermine a prosecution.
Discuss how this duty operates, the effect of failure to comply, and how this might influence criminal investigations involving digital evidence.
By Athul Raju (17200153)
Number of Words: 2428
Date of Submission: 10/12/2017
An evidence can be considered as any relevant material that will help the accused to disparage the prosecution case or give a lead to the other evidence.1 The Article 38.1 and 40.3 of the Constitution of Ireland state that the prosecution has the responsibility to disclose all the evidence to the defence; so that the trail will be aligned with the European Convention on Human Right Act 2003. The Gardaí, to achieve a fair and smooth trail have certain obligations to follow in seeking out and preserving the evidence.
The obligation of the Gardaí and effect of not complying with that and the influence of the same in investigations involving digital evidence is described in detail below.
Obligations Set by the Supreme Court
Over the years, there have been many cases that came in front of the Irish courts with missing evidence or cases in which Gardaí have made negligence in accruing the evidence, many of these cases have set a standard for the Gardaí in seeking out and preserving the evidence.
One of the most famous cases that fit into this category in the case of Murphy v. DPP 1989,2 the case reached in front of the courts for the unauthorized taking of a motor vehicle under s.112 of the Road Traffic Act. The vehicles which were crashed got returned to the insurance company for scrappage, before even giving an opportunity for the defence to perform a forensic analysis. The Supreme Court Judgment made by Lynch J. accepted that, even after the forensic evaluation by the defence, there might not be any evidence to prove the innocence, but as per him it was the responsibility of the Gardaí to preserve the evidence until the conclusion of the trail. Thereby setting a standard in many of the cases that followed under the tag of “missing evidence”.
There are many similar cases in which the Gardaí have failed to preserve the evidence, like in the case of Braddish v. DPP 2002.3 In this case the evidence was a missing CCTV video, that proves the real culprit of a shop robbery, the Gardaí managed to identify the person behind the robbery with the help of CCTV video, however, after the alleged person making the confession they returned the video, this was highlighted by the Supreme Court and like the Murphy v. DPP case,4 the Gardaí failed to retain the evidence until the end of the trail.
Both the above cases have set multiple obligations on the Gardaí in terms of preservation of evidence, which include. The evidence relevant to the guilt or innocence must be kept until the conclusion of the trail, this also applies to the articles that are used in securing the actual evidence. Even if a piece of evidence is no longer used by the prosecution does not give any right to the Gardaí to abolish or make it unavailable.
The Judgement of the case of Dunnes v. DPP 2002 had a major importance in setting the standards in seeking out of the evidence,5 this also happened to be another case that involved a surveillance video, but unlike the case of Braddish v. DPP, no member of the Gardaí had given or obtained the possession of the video which could have been a major influence in the proving the guilt or innocence of the accused. The court identifying the distinction between the two cases had made it clear during the Judgment that the obligation of the Gardaí will not limit to just retain or preserve the evidence but also in seeking out the same.
While presenting any stolen item as an evidence by the prosecution there will always be a challenge. The Gardaí have the responsibility to return the stolen item to the right full owner at the same time, the defence must be provided with ample time for examining the item, forensic evaluation or any other examinations. Gavin McKeown v. DPP is one such case,6 that involved a stolen item as evidence. In the case, Mr. McKeown was accused of stealing a car and assaulting the Gardaí. The car was returned to the rightful owner by the Gardaí on the following day. However, after Ten months of the Incident, the defence requested for the forensic test result of the car. But since the Gardaí were not in possession of the car any more a forensic test was impossible.
McCracken J. during the Judgement made a remark, that in case of a stolen commodity (in this case a car) the Gardaí must inform the defence before returning the item to the right full owner so that, the defence if required can get a reasonable amount of time for an examination of the item. Thereby setting a standard for the Gardaí to follow regarding the stolen items when submitted an evidence (as per s.35 Criminal Procedure Act 2010).
The Gardaí have a similar obligation in the case of items that are evidence and must be returned to a third party as in the case of Murphy or before disposing of the evidence as in the case of McGrath v. DPP.7 The defence must get ample time to examine the evidence to prove his innocence.
Furthermore, some general obligations that have come through during the years are, the Gardaí or any other investigative agency in case of any doubt regarding retaining any evidence or any similar conflict in the proceeds must seek the assistance of the Director’s office. Also in case if the Gardaí are not having the authority to hold to an evidence, they can return it after performing a forensic examination to the rightful owner or to a third party if they find that as a relevant evidence, if not, they can return the evidence and must have a valid reason that must be submitted to the court in reaching the conclusion why that evidence was not relevant.
Failure to Comply
Before moving on to the consequence, it’s important to understand that the prosecution is not liable to disclosure very bit of evidence in every case. Disclosure in criminal law and civil law is treated differently. In criminal law, the prosecution has the responsibility to disclose all the relevant evidence in their possession. Section 4B and 4C of the Criminal Procedure Act 1967 (as inserted by s. 9 of the Criminal Justice Act 1999) provide for the furnishing of the Book of Evidence. Things are the difference in the case of the civil law.
In case of civil law, the term used is “discovery”. The party can issue a letter requesting a voluntary discovery from the other party. This is written in accordance with the Order 31 rule 12 of the Rules of the Superior Court (as amended and substituted by the S.I No.233 of 1999).
Having considered the obligation of Gardaí, what will be the consequence if they fail to comply that. The major issue will be that the defence will not be able to conduct the defence in an effective manager which is against the right to fair trail mentioned in the Article 38.1 and 40.3 of the Constitution of Ireland.
In the case of missing evidence or failure in seeking out evidence if the defence manages to prove in front of the court that the evidence had the relevance to proving the innocence, then the court has the discretion to stop the trail from proceeding to a verdict if it would be unfair to the accused to do so. Even though the fairness of the trail will be maintained, the fact that a guilt happened, and no one got punished is setting a bad example for the society when we consider the bigger picture.
Worth mentioned on this is the amount of time and manpower lost in such cases. Because of the missing of pivotal evidence in the case of Braddish v. DPP 2002, it took nearly 6 years for the final verdict.8 Which could have easily avoided if the videos were collected.
One recent trend which has developed over the year in the missing evidence cases is that defence trying to mislead the court by focusing on the missing evidence rather than considering how relevant the missing evidence will be for proving the guilt or innocence of the accused. This is also underlying the importance of preserving the evidences that were mentioned in the Book of Evidence.
On this note, we must consider the personal data among the evidence. And the law applied to the missing or mishandling or sharing of personal data will be covered by the Data Protection Act of 1988 (Amended on 2003).
The Gardaí taking the role of the data controller and data protection (depending on the case and data) have a set of obligation to follow to get aligned with the Data Protection Act of 1988. If they failed to preserve the personal data and it will be the violation of section 2(1)(c) and 2(1)(d) and are punishable under the law, in this case it will be based on the law of torts as in the case of Gray & Ors v. Ministry for Justice,9 where the Gardaí accidentally leaked the data to the media which affected the family in multiple ways, making way for a verdict to award the family with €70,000 following the law of torts.
Gardaí also must comply with the Data protecting Act of 1988 while gathering the personal data of an individual as evidence. Failure in doing so is a violation of section 2(1)(c) and 2(1)(d) of the Data Protection Act.
The challenges while seeking out or preserving digital evidence are much more than while working with any other physical evidence. Digital evidence can be considered as “fragile” as it can be modified accidentally, maliciously and even from malfunctioning of the device from which it was collected. Similar challenges are faced while preserving or sharing the gathered evidence.
Because of these challenges, the Gardaí have the responsibly to follow a set of rules while gathering a digital evidence. This includes reliability, admissibility, relevance, material (best evidence rule) and competent.
Reliability is the most underlying factor of any evidence; however, the chances are very high in the case of the digital evidence that the evidence may be unreliable. Digital evidences have the tendency to become opaque, what might look like an evidence may have come from an input which can be totally wrong or a from a faulty device, because of which the authentication of digital evidence is required.
Hence the term Competent have importance, that means to authenticate the digital evidence Gardaí must seek the support of a qualified expert, in most cases, the digital evidence while submitting to the court have an expert testimony alongside it to provide its reliability. The expert must be qualified enough to state his testimony if proved otherwise court has the discretion to refuse his findings.
Even before considering all these factors the Gardaí have a responsibility to verify the admissibility of a digital evidence, that is whether it can be admitted into the class of evidence. The Gardaí have the obligation to follow the Section 22 of the E-commerce Act 2000 which considering the admissibility of a digital evidence.
The evidences which should not be considered admissible are the illegally obtained evidence, unconstitutionally obtained evidence and more, one this context it’s worth mentioning are the hearsay evidence, like in any other trails, hearsay evidence must be avoided here as well.
The big challenge for any investigative officer while collecting evidence is getting the best evidence as possible. If the original form of the evidence is tampered or destroyed, they have the privilege to get the second best one. However, one can argue that in case of the digital evidence there is no “original evidence” or in another way, one can say there are multiple original evidence.
Dealing with such a situation can be tricky at times. Even though section 30 of the Criminal Evidence Act 1992 abolished the best evidence rule in criminal proceedings, the Electronic Commerce Act, 2000, s.22, tweaks the rule in relation to electronic documents, making the job of the Gardaí easier.
One can argue that, when it comes to digital evidence, the copy can’t be considered as the best evidence, as the metadata of the copied information will not be same as that of the original one. However, there is no such restriction in Irish Law.
While preserving the evidence during the trail or sharing the evidence with the defence the Gardaí have set of obligation to follow. As mentioned earlier, the digital evidence can get modified easily in multiple ways. This can be countered in different ways with the help of an expert. Taking the hash value (or checksum) of the evidence while collecting it will help the Gardaí to identify any modification to the original evidence, a hard disk or any other storage device can be taken the image and stored during the trials.
Failure of the Gardaí in complying with these obligations can be lethal, apart from the ones which were mentioned earlier, one needs to understand that it’s relatively easy to modify a digital evidence, without leaving much of a trail in that action. This can even turn around the proceeding of the case. So, for a fair trial, it very much necessary for Gardaí to follow all these.
In summary, led in main by Hardiman J. the Irish Court is in a much advance situation by not making the duty of the evidence absolute but is to be elucidated in a fair and reasonable manner, instead of setting standards which are impossible to follow. The indication of Bowes, Scully is that the chances of having a ton of challenges are slim.10
However, this attitude of the court will always help the innocent defendant in proving their innocence. Also, if all the evidences are well persevered and gathered, the prosecution will be in a much stronger situation so that defence instead of misleading the court by highlighting a missing evidence, will be in a situation to request for an early plea, thereby saving the time of both the Gardaí and the court. The same can be said in the case of digital evidence as well.
1 DPP v Special Criminal Court 1998 IEHC 48; 1999 1 IR 60 (13th March 1998)
2 Murphy v DPP 1989 ILRM 71
3 Braddish v DPP 2001 IESC 45; 2002 1 ILRM 151 (18 May 2001).
4 Murphy v DPP 1989 ILRM 71
5 Dunne v DPP 2002 IESC 27 (25 April 2002).
6 McKeown v DPP 2003 IESC 26 (09 April 2003).
7 McGrath -v- DPP & Bowes -v- DPP 2003 IESC 9 (06 February 2003)
8 Braddish v. D.P.P. 2001 IESC 45; 2002 1 ILRM 151 (18 May 2001) (n 1).
9 Gray & Ors v Minister for Justice & Ors 2007 IEHC 52 (17 January 2007)
10 Scully -v- DPP 2005 IESC 11 (16 March 2005), McGrath -v- DPP & Bowes -v- DPP 2003 IESC 9 (06 February 2003).