The Gazette 1990

GAZETTE

A PRIL 1990

The Committee was of the view that where substantial doubts may arise as to the propriety of a conviction the establishment of an independent body with statutory powers of inquiry was by far the most effective manner of dealing with the situation. The independent Inquiry Body should be established by statute with evidential powers similar to those at present given to Public Inquiries by the Tribunal of Inquiry (Evidence) Acts 1921 and 1979. The Committee con- sidered that the Inquiry Body might consist of one or more than one person, sitting with or without an assessor or assessors. It was considered by the Committee that the Attorney General was the appropriate person to whom appli- cation should be made in the first instance by an aggrieved party. It would be for the Attorney General, having considered the documenta- tion presented to him, having sought such clarification as might be necessary and having made any enquiries which to him appeared desirable, to decide in a particular case whether the matters pre- sented to him were such as to warrant investigation by the Inquiry Body, and in that event to advise the Government accordingly. The Committee considered that the terms of reference of the Inquiry Body would be to inquire into all the available facts and circumstances surrounding the conviction and to express its opinion as to whether doubt existed as to the propriety of the conviction giving full reasons for such opinion. Having con- sidered and received the opinion of the Inquiry Body it would then be a matter for members of the Government and for them alone to decide whether the case called for action on their part and, in that event, the nature of such action. The Report also stated that additional safeguards were needed to ensure that inculpatory ad- missions by accused persons were properly obtained and recorded. The Committee strongly recom- mended, as a safeguard towards ensuring that inculpatory admis- sions to the Garda Siochana are properly obtained and recorded, that the questioning of suspects take place before an audio-visual recording device. The Committee also recommended an amendment to the Criminal Justice Act, 1984

(Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 (SI No. 119 of 1987). The Report of the Committee is available from the Stationery Office at £3.10.

those calls were made from a room occupied at the time by a particular guest, some were made from another room to which that guest had moved and one was made from the public telephone box in the foyer of the hotel. The manager gave evidence that he was familiar with the function of the machine. He did not profess to be a computer engineer but said that the machine had been working satisfactorily and no one had com- plained about the resulting bills. The recorder ruled that the evidence was admissible saying that in the light of Castle -v- Cross [1984] 1 WLR 1372 he concluded that the documents were real evidence. Reference was made in the judgment of the Court of Appeal to Professor J.C. Smith's article " T he admissibility of statements by computer" ([1981] Crim LR 387,390) where he had said: "Where information is recorded by mechanical means without the intervention of a human mind the record made by the machine is admissible in evi- dence, provided, of course, it is accepted that the machine is reliable . . . . The computer differs from [a thermometer or a camera] only in that it can perform a variety of functions instead of only one. For that reason, it is necessary to have evidence, such as that which was admitted in R -v- Pettigrew, (1980) 71 Cr App R 39 to establish the nature of the operations which the computer had been programmed to perform. It performs those operations just as mechanically as the thermometer or the camera. "Of course the programmer may make a mistake but so may Northern Ireland Agency Work Undertaken by Solicitors Donnelly, Neary & Donnelly I, Downshire Road, Newry, Co Down. Phone: 08 - 0693 - 64611. Fax: 08-0693-67000. PROMPT REPLIES ASSURED FEE SPLITTING ARRANGED

PR I NTOUTS ADMI SS I BLE AS REAL EVIDENCE The Court of Appeal (England and Wales) has held in the case of Regina -v- Spiby (The Times March 16th, 1990) that where a computer installed in a hotel recorded, by mechanical means and without the intervention of a human mind, information about telephone calls made by hotel guests, evidence of printouts from that computer was admissible as real evidence. In the absence of evidence to the contrary, courts would presume that such a computer was in working order at the material time. The Court of Appeal (Taylor LJ, Mars-Jones and Waite JJ) so held when dismissing an appeal of John Eric Spiby against his conviction on February 24 1989 in Portsmouth Crown Court (Mr. Recorder Moriarty QC and a jury) of an offence contrary to section 170(2) of the Customs and Excise Management Act, 1979 of being knowingly concerned with others in the fraudulent evasion of the prohibition on importation of a class B controlled drug, cannabis resin, imposed by section 3(1) of the Misuse of Drugs Act 1971. He was sentenced to two and a half years imprisonment. Taylor LJ in his judgment stated that for the purposes of the appeal the most important evidence in the case related to some telephone calls made from a hotel in Cherbourg, in which was fixed a computerised machine which metered guests' telephone calls, recorded them and worked out the charges. Evidence was given by a manager at the hotel who produced copy printout sheets from the machine, covering a period of days during which it was shown that eight calls had been made to the appellant's home number, and two to the number of his club. Taylor LJ stated that some of

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