The Gazette 1995

GAZKTTKD E CE MBER1995

'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 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. ! from a security guard who had examined the till rolls, that the ' qualification should be required in J order for an expert to testify about the I functioning of a computer. The facts here concerned a building society inadvertently crediting C's account with more than he had paid in. A j 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; j R v Cochrane 8 comes closer to ! resolving the issue of what

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. " s R v Spiby 6 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. In 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

| 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, 9 the point is made that the Court is not in a position to take j judicial notice of the way in which a j ^ computer functions, and so it may be | necessary for a foundation to be laid j 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 j court was in no position to go on ! to the next question of whether the ! complex instrument such as a 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. j 3. Admissibility of Documentary 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 10 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 j private documents is central to the i 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: j Evidence under the Criminal Evidence Act 1992. i relevant statutory provisions (section 69 of the Police and

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

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