Digital evidence no match for a witness box account

Criminal defence solicitor Rory Staines told the ACJRD conference in Dublin on 5 October 2018 that courts are struggling to keep pace with technical change. 

A presumption in favour of business records’ admissibility as evidence would be quite a straightforward amendment to the Criminal Evidence Act of 1992, solicitor Rory Staines told the ACJRD conference.

He said that Irish courts are not suited to dealing with technical evidence and are often attempting to fit new forms of technical evidence into old categories.

Video-link evidence is not possible in every county in Ireland, he pointed out, and cases are frequently transferred to Dublin where there is already a strain on lists.

Even a fairly modern facility such as the Criminal Courts of Justice in Dublin was built without screens in every court to transmit CCTV evidence, he said.

These are practical issues rather than legal issues, but sometimes practicalities are more important than legal issues, the conference heard.

Lawyers who are trying to assess digital evidence must engage experts to understand that evidence, particularly in relation to mobile phones, said Staines, a solicitor from the award-winning criminal defence team at Michael J Staines & Company in Dublin’s Smithfield.

Admissibility

Challenging technical evidence is usually about its admissibility but, in order to be admissible, evidence must be shown to be relevant.

In the recent Anglo Irish Bank trial, admissibility concerns arose as to whether business emails were real evidence, or hearsay, and if the latter, whether they fitted into other category exceptions.

Hearsay evidence is where courts have struggled, the conference heard. 

Courts like to hear evidence from witnesses in a witness box. That’s what juries like as well, Staines pointed out.

Dealing with thousands of documents in evidence in complex cases, and getting witnesses into the witness box in relation to those documents, can take a long time, he said.

This needs to be looked at, perhaps in terms of pre-trial hearings, which was also suggested by others at the conference.

Legislating for the automatic eligibility of business records would save a huge amount of time and expense, Rory Staines believes.

Business records are papers prepared as part of the normal course of business, and not created as part of a civil or criminal investigation. 

Business records are information and not opinion, and are compiled and received in the ordinary course of business.

The recent O’Mahoney vs DPP case quashed a verdict in the Anglo Irish Bank trial, on the basis that admissibility wasn’t dealt with properly.

All of these questions of admissibility of evidence are dealt with while the jury is sitting, which is wasteful of both time and resources, the conference heard.

A presumption in favour of business records’ admissibility would be straightforward, the conference heard.

Social media tracking

On the question of social media, active users can be tracked in terms of where they are and who they’re with, Mr Staines pointed out, and this can be used against them.

“People make comments online that they would never make in person, and these comments cannot be deleted or removed properly,” he said.

Facebook can be very useful in a criminal trial for both prosecution and defence, but its admissibility can cause massive problems.

Who in Facebook could you call to prove the validity evidence, since the social media giant is based in the US, but has offices in Dublin –  which jurisdiction is applicable?

How could one definitively prove that an account hadn’t been hacked, he asked – creating a fake profile could be an effective way to frame someone.

Courts may accept an IP address because it is generated by a machine, and therefore is not hearsay, the conference heard.

Mobile phone records

Mobile-phone evidence is the most frequently litigated area, and both the Meehan and O’Reilly convictions were substantially based on mobile-phone records that tracked their movements.

But the conference heard that mobile-phone transmission towers on the border with the north can move back and forth between north and south, raising cross-jurisdictional issues.

In DPP vs CC, the evidence presented in court also tied in the mobile data of people not before the courts, raising further issues.

Recent arrests had also involved suspects with heavily-encrypted mobiles, Rory Staines concluded, showing that this area of criminal practice is never straightforward.