The Gazette 1995

GAZETTE

DECEMBER 1995

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 15 , 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." 16 category as forensic science, the author j 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 j comments of that author might well have emanated from a lawyer, ! providing a neat assimilation of science and law: Making the point that the science of imagery analysis is in the same

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 j under PACE, if it would adversely affect the fairness of the proceedings. The Court was also of the view that i | procedures should be instituted for ! regulating video showings where there i are already known suspects. In R v Bailey & Smith 12 evidence obtained by I the use of listening equipment was at issue. The accused here exercised their j right to silence, and were placed in a j cell together where listening equipment had been installed. The police acted as i 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 j evidence because of the manner in ! which it was obtained. ( R v Mason 13 was distinct in that the trick was played on the solicitor also). It is questionable ! however, whether the Irish courts would prove so sanguine. 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. 14 j The development of electronic means of obtaining imagery of scenes or events has led to a significant increase j in the use of imagery derived evidence in court. Because of the emergence of new ways of recording events, "imagery" has replaced "photography" 4. Future Developments: 'Image-based' Evidence

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 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 j Nyssens 19 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." and it is sensible to obtain an independent second opinion." 17 future clash of the concerns and cultures of the legal and scientific worlds. 5. Summary

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"In a balanced system of justice, there !

Either way she contends that it is

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