THE SUPREME COURT
Denham C.J.
O’Donnell J.
McKechnie J.
O’Malley J.
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 23 OF THE CRIMINAL PROCEDURE ACT 2010
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Appellant
and
A. McD.
Accused/Respondent
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 14th day of December, 2016
Legal Context:
1. In early 2014, at Dublin Circuit Criminal Court, the accused/respondent was found not guilty by a jury, on a direction of the trial judge, in respect of the following three offences, namely:-
(1) Count 1 - Burglary:
that on the 19th August, 2011, he entered the building known as the car park of a certain apartment complex in the inner part of Dublin City (identified by name and location in the indictment) as a trespasser and did commit an arrestable offence to wit: arson, contrary to section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001;
(2) Count 2 - Endangerment:
that on the same occasion and at the same place he intentionally or recklessly engaged in conduct to wit: the setting alight of a particular motor vehicle, which created a substantial risk of death or serious harm to another, contrary to section 13 of the Non-Fatal Offences Against the Person Act 1997; and
(3) Count 6 - Arson:
that again on the same occasion and at the same place he did, without lawful excuse, damage certain specified property by fire, intending to damage the same or being reckless as to whether such property would be damaged, contrary to section 2(2) of the Criminal Damage Act 1991.
A nolle prosecui was entered in respect of the other counts on the indictment.
2. The DPP took objection to the preceding evidential rulings which directly led to the non-guilty verdicts being returned. She decided to invoke the provisions of section 23 of the Criminal Procedure Act 2010 (“the 2010 Act”), so as to appeal to this Court from the rulings so made. In broad terms she claims that the learned trial judge, in acceding to the applications made on behalf of the then accused person, erroneously excluded “compelling evidence” within the meaning of section 23(3)(a) and (14) of the said 2010 Act. That evidence was twofold in nature: first, certain CCTV footage which the trial judge ruled inadmissible during the course of a voir dire; and, secondly, a certain memorandum of interview which was excluded, when the issue of its admissibility arose, on the basis that the provisions of section 19 of the Criminal Justice Act 1984 had been wrongfully invoked and that there was therefore a doubt as to whether the accused person’s responses in the interview had been given voluntarily. As there was no further evidence of value against the accused, the trial judge directed the jury accordingly. As this is a “with prejudice” appeal, the DPP also seeks to have the accused re-tried for the offences above described.
Factual Background:
3. At approximately 9.10pm on the 19th August, 2011, a number of gardaí, in response to a call from a member of the public, arrived at the apartment complex in question. One such member, whom I shall call Garda Smith, observed a male, now known to be the respondent, on the inside of a gate to the car park underneath the apartment building. He was attempting to open the gate, but was unable to do so. He acknowledged that he was not a resident in the apartment block and said that he was simply trying to get out. At that point, Garda Smith, who earlier had been conscious of smelling smoke, observed that a car was on fire within the car park itself.
4. A short time thereafter, the accused was arrested and subsequently detained pursuant to section 4 of the Criminal Justice Act 1984 (“the 1984 Act”), which detention was extended once in accordance with the provisions of that section. During this detention, in which a number of items of his clothing were taken for examination, the accused was interviewed on three occasions. Nothing of evidential value derived from the first two interviews; during the third, however, he accepted that he was at the scene of the crime and that he was a trespasser on the premises in question, but denied that he had any responsibility for setting fire to the vehicle. He was released without charge at 12.30pm on the 20th August, 2011.
5. On the 24th August, 2011, Garda Smith obtained CCTV footage which appeared to show the incident in the car park and a man setting fire to the motor vehicle. He believed that this was the same man as the person he had first encountered on arriving at the complex. Sometime afterwards he obtained a piece of forensic information regarding the presence of petrol vapour on a petrol cap found beside the burned out car. Armed with this new evidence, Garda Smith obtained, on the 14th November, 2011, a warrant under section 10 of the 1984 Act, which authorised the re-arrest of the accused in the context of this incident. That warrant was executed some two days later.
6. On the 16th November, 2011, the accused, having been re-arrested, was interviewed on a number of occasions, one of which features heavily in this case. Thereafter he was charged with certain offences arising out of the incident above described, including the three specific charges set out at para. 1, supra. On arraignment, pleas of not guilty were entered in respect of all such charges. The essential evidence upon which the DPP proposed to rely at trial was the CCTV footage of the incident, as well as a memorandum of the third interview conducted on the 16th November, 2011, (sometimes referred to as the “section 19 interview”). In effect, as events show, without this evidence there was no other basis which could possibly justify a continuation of the prosecution.
The Objections:
7. The trial of the accused commenced before Her Honour Judge Berkeley in early 2014. At the outset of the hearing, after the jury had been sworn in but before counsel’s opening address, the trial judge agreed to hear and determine an objection to the admissibility of the said CCTV footage, and for that purpose embarked upon a voir dire. Subsequent to her ruling on that issue (para. 17, infra), the case proceeded on the further evidence available until Day 3 of the trial, when objection was made to the admissibility of the said memorandum on the basis that section 19 of the 1984 Act, as substituted by section 29 of the Criminal Justice Act 2007, had been wrongly invoked. Consequently there were two discrete admissibility rulings made at the trial which remain, apart from the procedure adopted, the essential issues on this appeal. One can perhaps add a third, which is that even if the section 19 objection is a good one, does this automatically render the resulting statement involuntary. Finally, depending on this Court’s decision on these points, the consequential issue of a re-trial may also have to be considered. First, however, a reference to the statutory provision by which the case has arrived at this Court.
The Criminal Procedure Act 2010:
8. By Notice of Appeal dated the 4th March, 2014, the DPP, in the grounds of appeal, described her challenge, inter alia, as relating to:-
As is therefore quite evident, the vehicle by which the instant appeal is moved is rooted on that nominated provision of the 2010 Act.
Section 23 of the 2010 Act
9. Section 23 of that Act, which provides for the possibility of a “with prejudice” prosecution appeal by the DPP (or, where appropriate, the Attorney General) in certain criminal proceedings, states as follows:-
“23.— (1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director … may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
…
(3) An appeal under this section shall lie only where—
10. Section 23(14) defines the term “compelling evidence” as meaning evidence which:
“(a) is reliable,
(b) is of significant probative value, and
(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.”
11. The jurisdiction of this Court on such appeal is set out in section 23(11) of the Act, which provides that:-
“(11) On hearing an appeal under this section the Supreme Court may—
(a) quash the acquittal … and order the person to be re-tried for the offence concerned if it is satisfied—
(i) that the requirements of subsection (3)(a) … are met, and
(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,
or
(b) if it is not so satisfied, affirm the acquittal …”
12. Finally, the matters so referred to in section 23(12), to which the court shall have regard in determining whether to make an order under subsection (11)(a), are as follows: (a) whether or not it is likely that any re-trial could be conducted fairly; (b) the amount of time that has passed since the act or omission that gave rise to the indictment; (c) the interest of any victim of the offence concerned; and (d) any other matter which it considers relevant to the appeal. Thus, in order to grant the Order sought by the appellant and so quash the acquittal and order a retrial, this Court must be satisfied: (1) that the trial judge erroneously excluded compelling evidence and (2) that it is in the interests of justice to do so, having regard to all the circumstances, including the matters set out in section 23(12) of the 2010 Act. Whether the facts of this case demonstrate due compliance with these provisions is an issue to which I will return later in the judgment.
Issue No. 1: The CCTV Footage:
13. As above noted, counsel for the accused person indicated at the outset of the trial that he wished to challenge the admissibility of the CCTV footage. This objection was dealt with by way of a voir dire. The prosecution called two witnesses whose evidence, the DPP says in her submissions, proved the “provenance and authenticity” of the footage: Garda Smith, the investigating officer, was one, and the other was Mr Gerard Murphy (not his real name), property manager of both the complex and car park, who had access to the system and who on request supplied the impugned footage to the gardaí.
14. Garda Smith gave evidence that he requested CCTV footage of the incident from the property manager and that on the 24th August, 2011, he received same on a disc labelled “19th of August between 20.00 and 21.00”. Garda Smith stated that on viewing this footage he recognised the respondent as being the person who set the vehicle alight. He explained that:-
“The clothing and his height, his build, colour of his hair, Judge, more or less his demeanour, his gait, I recognise, I recognised that from the CCTV. I recognise him as the same person who I arrested … in that car park on the same night.”
15. Mr Murphy, who gave evidence as to his position and occupation within the complex and who had been on vacation on the date of the fire, stated that on the 22nd August, Garda Smith requested that he retrieve CCTV footage of the incident. He said that upon checking the recording, he observed a car being shaken by a few people, after which “there was a big light coming out of it.” He downloaded this footage onto a storage device, burnt the footage onto a disc and handed this disc to Garda Smith on or about the 24th August. Neither witness was cross examined and their evidence was uncontroverted.
16. At the conclusion of the prosecution’s evidence, defence counsel made an application to exclude the CCTV footage on the basis that it had not been properly proved. The accused submitted that no evidence had been put before the trial court to enable it to ascertain whether the footage was real evidence or hearsay; there had been no explanation, even in simple terms, of how the camera system operated. It was stated that in the absence of such evidence regarding the function and operation of the CCTV system, there was no way of knowing whether there had been any human intervention in the creation of the footage: accordingly, it was inadmissible. In response, counsel for the DPP submitted that the CCTV footage was real evidence and was not inadmissible hearsay; that it was not to be equated with computer printouts/records; and that the accused had not established that the probative value of the footage was outweighed by its prejudicial value such as would give rise to a significant risk of injustice.
The Trial Judge’s Ruling:
17. In ruling on the admissibility of the CCTV evidence, the learned trial judge held as follows:-
“Well, I’m going to decide the first issue that was raised by the defence, that’s in relation to the admissibility of the CCTV. CCTV footage may be a piece of real evidence or may remain as hearsay, the actual proof and the relevance of which depends on the evidence of others. Garda Smith and Mr Murphy have satisfied me as to the relevance of the CCTV footage but it has not been proved. That is, no evidence has been led by the prosecution to indicate whether or not the CCTV automatically records information by mechanical means without intervention of the human mind to make it admissible. No evidence has been adduced to this Court in relation to its basic workings, whether it operates on a time basis, time sequence or matters that would indicate it’s automated. It is clear from the authorities cited by the defence that before this Court can decide whether the CCTV is admissible, whether as direct evidence or hearsay, it is necessary for the prosecution to call the appropriate authoritative evidence to describe the function and workings of the CCTV system, which is in effect a computer, and I’m bound by the authorities in Murphy and in the Meehan case in this regard. This would involve proof of how the system works, its sequence date and time, recordings, rather simple matters to be put before the Court, and I don't understand why the prosecution haven't called that evidence. In the circumstances, this Court has no option but to hold that … the CCTV is inadmissible. And that then deals with the second objection.” (Transcript (Day 2), p. 8 line 20-34 and p. 9 line 1-5)
Cases Relied Upon:
18. As is obvious from the above, the trial judge considered herself bound by the decisions of DPP v. Murphy [2005] 2 IR 125 (“Murphy”) and DPP v. Meehan [2006] 3 IR 468 (“Meehan”) when ruling on this issue. Whilst it is important to note the conclusions reached in those cases, it is even more significant, however, to recount the authorities endorsed by the Court of Criminal Appeal in each of these judgments. But first a look at the decisions themselves.
19. Murphy was a case in which the accused person was convicted by the Special Criminal Court of conspiracy to cause the Omagh bombing. One of the grounds of appeal related to the admissibility of telephone records, established by reference to cell mast information, which were introduced so as to show a pattern of communication between Mr. Murphy and other relevant persons both prior to and subsequent to this atrocity, which was one of the worst outrages in the history of Northern Ireland. Having heard evidence from the prosecution witnesses called on this issue, the court, being satisfied that all necessary evidential requirements had been established, held that such records were admissible, first, on that basis, and, secondly, as falling within the provisions of section 5(1) of the Criminal Evidence Act 1992 (see, however, McGrath, Evidence, 2nd Ed., (Dublin, 2014) at para. 5-189).
20. On appeal, the Court of Criminal Appeal (“the CCA”) was of the view that the fact that a recording is produced mechanically without human intervention “makes no difference to its general admissibility in evidence”. The Court further took the view that such applied not only where the device in question processes information supplied to it, but also where the device itself gathers information. It cited several English authorities for these propositions, the most relevant of which are considered at paras. 22 to 27 and 50 to 55 of this judgment.
21. The second Irish case relied upon by the learned trial judge was Meehan, in which the prosecution introduced a print out of telephone traffic between mobile phones used by Mr. Meehan and two other individuals. Evidence was adduced to establish that the phones in question were assigned to or were otherwise habitually used by such persons. The Court of Criminal Appeal rejected a defence argument that the proffered records were inadmissible on a variety of grounds, including that of hearsay, and reiterated what previously had been stated in Murphy. Apart from its own importance, however, the decision did not add in substance to what was concluded in the earlier case. Accordingly, save as otherwise appears, any further reference to Murphy should be read as including Meehan.
English Case Law:
22. The first of the cases cited for the CCA’s analysis in Murphy was that of The Statue of Liberty [1968] 1 W.L.R. 739, in which the plaintiff sought to admit in evidence a film of echoes recorded by radar at a shore station which was unmanned at the time. The defendants had argued that evidence produced mechanically and without human intervention was inadmissible as hearsay. Rejecting this submission, Sir Jocelyn Simon P. said:-
“If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible - or indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer, but not if it were operated by a trip or clock mechanism. Similarly, if evidence of weather conditions were relevant, the law would affront common sense if it were to say that those could be proved by a person who looked at a barometer from time to time, but not by producing a barograph record.”
23. In R. v. Wood (1982) 76 Cr. App. R. 23, the prosecution sought to secure a conviction for handling stolen metal by proving that the chemical composition of the recovered goods corresponded with that of the remainder of the original consignment which had not been stolen; subject to this being established, the origin of both could then be verified by reference to a log sheet and stock book created at the time of manufacture. This was a complicated exercise involving a team of scientists who had recourse to specialised equipment, the results of which were then fed into a pre-designed computer programme. When completed, the resulting printout recorded the chemical composition of the metal samples analysed. Even though such an exercise could have been done manually, the same would have involved “a laborious mathematical process”. Notwithstanding objection being taken, the evidence was allowed in and was instrumental in securing the conviction of the accused person.
24. Lord Lane C.J., in giving the judgment of the Court of Appeal (Criminal Division), was of the opinion that such a printout was not hearsay but more properly should be treated as a piece of real evidence, even if its actual proof and relevance depended upon the evidence of others. The learned Chief Justice continued:-
“Witnesses and especially expert witnesses frequently and properly give factual evidence of the results of a physical exercise which involves the use of some equipment, device or machine. Take a weighing machine; the witness steps on the machine and reads a weight off the dial, receives a ticket printed with the weight or, even, hears a recorded voice saying it. None of this involves hearsay evidence. The witness may have to be cross-examined as to whether he kept one foot on the ground; the accuracy of the machine may have to be investigated. But this does not alter the character of the evidence which is being given.”
Further examples of evidence being regarded as real and not hearsay include the use of a speedometer and that of an electronic calculator.
25. Similarly, in Castle v. Cross [1984] 1 W.L.R. 1372 it was held that evidence from a statutorily approved Intoximeter 3000 breath testing machine was admissible on the basis that it was a tool, albeit a sophisticated one. There had been no challenge to the competence of the operator or to the efficiency of the machine. Accordingly, the printout was the product of a mechanical device, which fell into the category of real evidence. It is to be noted also that the court was prepared to apply a presumption, in the absence of evidence to the contrary, that “mechanical instruments were in order at the relevant time” (Cross on Evidence, 5th Ed., (1979) at p. 47).
26. The CCA in Murphy also referred to the case of R. v. Spiby (1990) 91 Cr. App. R. 186, which involved a computerised “Norex” machine which automatically recorded certain information about telephone calls made from a hotel bedroom. A printout of these call records, containing details such as the time and duration of the call, the numbers dialled and the cost, was admitted as real evidence. The judgment of the court (Taylor L.J.), which held that where information is recorded by mechanical means without the intervention of the human mind, the record made by the machine is admissible, went on to state that:-
“We consider that the learned recorder was right in the present case to conclude that the computer print-outs from the Norex machine were real evidence. This was not a print-out which depended in its content for anything “that had passed through the human mind”. All that had happened was that when someone in one of the rooms in the hotel had lifted the receiver from the telephone and, with his finger, pressed certain buttons, the machine had made a record of what was done and printed that out. The situation would have been quite different if a telephone operator in the hotel had had herself to gather the information, then type it into a computer bank, and there came then a print-out from that computer. There the human mind would have been involved, that would have been hearsay evidence, and sections 68 and 69 would have been in point. However, in the present case, no such intervention of the human mind occurred. What was recorded was quite simply the acts which had taken place in regard to the telephone machinery and there was no intervening human mind.” (Emphasis added)
See also R. v. The Governor of Brixton Prison, Ex p. Levin [1997] AC 741.
27. Finally, and of some significance, Kearns J. in Murphy stated that the cited authorities as discussed in that judgment must now be read subject to the decision in R. v. Cochrane (1993) Crim. L.R. 48 (“R. v. Cochrane”), in which it was held by the Court of Appeal (Criminal Division) that before the judge could decide whether the computer printout in that case should be treated as real evidence or as hearsay, it was necessary to call appropriate authoritative evidence to describe the function and operation of the computer in question. This is an issue which I will again refer to later in the judgment (paras. 50-55, infra).
Submissions of the Parties to this Court:
28. The position adopted by each party and their respective submissions on this point are in substance the same as those advanced before the trial judge (para. 16, supra). The appellant seeks, inter alia, to disturb the ruling as given, whilst the respondent relies upon the arguments made at trial and accepted by the trial judge. Both parties cite the same general authorities on this issue.
29. The appellant submits that the trial judge erred in equating CCTV footage with computer records, as the latter may require information, either wholly or in part, to be implanted by human agency. If such be the case, the computer records are tantamount to a statement made by the person who inputted the information into the machine and thus amount to hearsay. R. v. Coventry Justices, Ex parte Bullard (1992) 95 Cr. App. Rep. 175 (“R v. Coventry Justices”) and Myers v. Director of Public Prosecutions [1965] A.C. 1001 (“Myers”) feature examples of printouts/records of such a nature. On the other hand, some device or computer records may be produced automatically/mechanically without any human intervention; computer printouts or records in this latter category are admissible as real evidence and do not constitute hearsay. (The Statue of Liberty; R v Wood; Castle v Cross: R. v. Spiby.) As a result of this distinction, it may be necessary in a given situation to determine which kind of computer record is at issue: if the former, then the record itself is inadmissible hearsay (unless admissible under a statutory exception to the hearsay rule); if the latter, the record is admissible as real evidence and does not constitute hearsay.
30. The DPP, whilst agreeing that evidence in respect of the functioning of a computer must be called before such printouts/records are admissible (R. v. Cochrane), argues that this is not required in respect of a CCTV recording, which is the result of an independent automated process, unconnected with human input. Consequently, there is no necessity for the court to inquire into or for the prosecution to prove the function and operation of a CCTV camera, such as that in this case, as it merely records such images as are within its line of vision at any given time. Thus, it is said that the CCTV footage fits into this description of being produced without human intervention and, accordingly, that the trial judge’s ruling was incorrect as a matter of law.
31. The appellant furthers this distinction by suggesting that if the arguments advanced on behalf of the respondent are correct then this would have “absurd results”. For example, if CCTV footage was found in a person’s home which showed that person committing a murder, the same would be inadmissible in the absence of evidence concerning the type of camera or system used to record the footage: this would be an absurd situation and clearly unjust.
32. Consistent with this argument, the DPP also says that the lack of evidence, if such be the case, as to the date or time of the footage, its sequence, or whether it had been edited, might be factors which go to the weight or reliability of the evidence, but would not of themselves render the footage inadmissible as hearsay. Likewise, other details - such as whether the camera is wall-mounted or handheld, records continuously or in bursts, is motion-activated or constantly switched on, is static or swivels, or requires to be switched on and off to commence and conclude recording - all may be relevant, but not as to admissibility. In essence, it is said that in dealing with real evidence, the Court must merely satisfy itself as to the authenticity of that evidence; issues of weight are matters for the jury (R v. Robson; R. v. Harris [1972] 1 W.L.R. 651) (“R v. Robson & Harris”).
33. Finally on this point, the appellant submits that the prosecution adduced sufficient evidence to prove the “provenance and authenticity” of the recording, as well as the chain of custody in respect of the obtaining, retention and safekeeping of same. It is also pointed out that the defence did not cross-examine the prosecution’s witnesses or raise any issue with them regarding potential defects in the recording of the footage.
34. The respondent, on the other hand, submits that in the absence of appropriate evidence one simply does not know how the process of recording took place or how the system functions. One therefore cannot say whether the CCTV records everything in its line of vision, or whether some individual is involved in what is recorded and how the system works. If some person was involved in activating its operation, in choosing what might be recorded and when, or in fixing the angle of the camera, then such human intervention would render it hearsay and thus inadmissible. Whilst the distinction between hearsay and real evidence is accepted, nonetheless the trial judge simply had no evidence upon which she could make that decision in this case.
35. It was not suggested that the required evidence should be highly technical or that it should necessarily be tendered by some qualified expert in this field. The property manager would suffice to show matters such as whether it was automated, whether the date and timing was correct, what the angle of the camera was and whether the images can be enhanced. None of this material, however, was before the court. As a result, in the respondent’s view one simply does not know what one is looking at.
36. Several of the English authorities above mentioned were referred to by the respondent, but there was a high degree of emphasis on both the Murphy and Meehan cases. Furthermore, in answer to any suggestion that the court might be able to draw appropriate inferences, it was submitted that such an approach was not available given the standard of proof applicable in a criminal trial. Accordingly, the respondent submits the trial judge was legally correct in the decision which she arrived at.
Decision/Discussion:
37. It is undoubtedly the case that the learned judge felt bound by both Murphy and Meehan in reaching this decision. These cases state that a recording which is produced mechanically without human intervention is generally admissible in evidence. They also analyse the case law relied upon for this conclusion, within which are found examples of certain printouts/records from machines or computers which satisfy this requirement and others, which depend on human input, which do not (para. 29, supra). Furthermore, in the CCA’s view such decisions were now be read through the lens of the judgment in R. v. Cochrane. So, in effect, the trial judge held that an assessment on a case by case basis is required in order to determine the admissibility of the CCTV footage.
38. Despite being conscious of the distinction above described, the transcript of the proceedings does not suggest that the trial judge determined that the CCTV footage in this case had required human input or intervention of such a kind as to render the material hearsay. This is not my understanding of her ruling on this matter, and I do not read what she said as saying that the footage was inadmissible because it was hearsay. Indeed, the trial judge herself, having expressly made the point that in her view the footage may be a piece of real evidence or it may be hearsay, then continued [that in any event] “no evidence has been led by the prosecution to indicate whether or not the CCTV automatically records information by mechanical means without intervention of the human mind to make it admissible.” It is thus clear that because of this evidential void, as she saw it, the DPP had not discharged the onus of properly proving to the required standard which side of the divide this footage, and the process by which it was created, should be placed on. Accordingly, I accept the respondent’s submission that the trial judge did not make a ruling that the CCTV footage was hearsay.
39. The case law, certainly at a specific level, does not establish - and it is also highly doubtful if it even supports - a requirement for such an exercise in respect of this type of footage. The Statue of Liberty involved a film of radar echoes showing the movements of two ships; R v. Wood, a printout from a computer, otherwise described as a tool or sophisticated calculator; R. v. Spiby, a computer printout from a Norex machine; with Castle v. Cross relating to a further printout, but on this occasion from an intoximeter machine. None of these involved CCTV footage. Equally so, it is abundantly clear that the disputed evidence in Murphy and Meehan did not involve this type of material, as the relevant point in both cases related to the admissibility of telephone records.
40. The possibility of the evidentiary output of any of these devices or machines constituting hearsay existed because, without having heard evidence as to how the particular apparatus worked, the court/jury could not be sure whether that record/printout was merely displaying information fed to it by a person, or whether it had been produced without intervention by a human mind. Without evidence to explain the functioning of the machine, the court simply would not have known how the evidence was generated. This is not the case in respect of CCTV footage (see paras. 45-48 and 55, infra). Therefore it is difficult to see how these cases could be a direct basis for or justify the conclusion so reached by the learned judge.
41. The two decisions referred to at para. 29 above, in which the court held that certain printouts were hearsay, derived from the classical use of computers and in any event once again did not relate in any way to CCTV footage. Myers was a case in which the prosecution sought to identify stolen motor vehicles by their cylinder block and chassis numbers. These had been entered on cards by the actual workmen who inspected the vehicles as they passed through the assembly line, and had later been microfilmed. The only witness at trial was the operative who produced the microfilm: no workman was called. The most that could be said was that the microfilm was accurate if the original record of that particular motor vehicle leaving the factory works bearing those particular numbers was correctly made. The witness could not prove that the record was correct or that the numbers which it contained were in fact the numbers of the cars the subject matter of the indictment. In R v. Coventry Justices it was accepted that the outputs recorded on a computer printout were, or were derived from, information implanted by a human who was not available to give evidence in that particular case. Accordingly, it seems evident that the tendered evidence in both of these cases was clearly hearsay. Therefore none of the case law, as referred to in Murphy and Meehan and as analysed above, supports the proposition underlying the ruling of the learned trial judge.
42. A distinction, at the level of principle, is said to exist between computer printouts and the external records produced by other types of machines, in particular those of a CCTV camera; this, according to the DPP, can be deduced from the case law. She acknowledges that if the system in this case is to be equated with a computer, then her objection to the ruling by the trial judge is considerably weakened; however, she strenuously disputes that this is so, submitting that as the underlying process is fundamentally different from that of a computer, the resulting evidential product must likewise be so regarded.
43. I very much doubt the utility of a court having to decide whether a particular appliance is or is not a computer, an issue I suspect that many authoritative figures could argue about long and hard. With technology being ever so complex, a trend likely to continue, it seems to me that such an exercise could be both difficult and time consuming as it may involve a detailed analysis of the intricate components of any such system. Indeed, for the purposes of the legal issue in debate, even a resolution of such matter may not be determinative. Accordingly, in my view it is not essential to the issue under consideration and therefore one should not enter the classification debate on this point. Rather, in light of the objection raised, the focus must be on deciding whether or not there was human intervention in any part of the process which impacted directly on the content generated, upon which the prosecution intended to rely.
44. As is evident from what previously has been outlined, the hearsay/real evidence debate in the case law referred to, occurring as it does at the level of pure admissibility, is heavily centred on whether the particular machine, device or apparatus operates automatically and without human intervention, on the one hand, or whether human intervention is required, on the other. If the latter it is to be regarded as hearsay and, subject to well established rules, may or may not be admissible. If the former it is to be regarded as real evidence. As earlier stated, examples of both categories can be found in the relevant authorities, some of which are summarised at para 29, supra. Therefore a key question on this aspect of the appeal is whether the trial judge was correct as a matter of law in concluding that the footage tendered could amount to hearsay.
45. It seems to me that it is of the first importance to appreciate what human intervention in this context means, and what type of such intervention will be required before the disputed evidence should be regarded as hearsay. Without conducting an exhaustive study it is not possible to know how all CCTV systems work, even if one were to disregard all other devices. It is patently obviously, however, that not every one of them operates in the same way. Whatever the particular functionality might be, it is almost certain that without some input none of them could function at all.
46. Apart from its manufacture and assembly, it will be necessary to position a CCTV camera and its associated equipment in such a manner that images are recorded and that in the event of a power disruption some back-up system is in place. In addition, for example, so simple a matter as whether the system by default records all of the time, or requires to be switched on and off according to a person’s command, or is time, date, event or motion-related, will naturally have a significant bearing on the footage captured by that system. So too could a camera with any kind of “zoom” function be effected, in part, by input by a human user monitoring the camera. Depending on the functionality of the system, there may be a number of other ways in which the operation of a CCTV camera could be said to have been influenced by human intervention. A simple illustration is that a camera, at least when commissioned or installed, does not start a recording without someone pressing the “record” button, so even at a most basic level there will always be some from of human intervention in one sense of the word.
47. However, it is not clear how intervention of this kind would render CCTV footage hearsay. The content of the footage, the actual recording made by the camera in question, is not dependent on human intervention, even if, for example, it requires to be initiated by the command of a human operator. This distinction, it seems to me, is what the case law in this area is driving at, with the phraseology used by Professor Smith in his article on The Admissibility of Statements by Computers [1981] Crim. L. R. 389 being particularly apt, namely, “… hearsay invariably relates to information which has passed through a human mind …” This passage was approved in R v. Minors; R v. Harper [1989] 1 W.L.R. 441 and in Spiby.
48. Accordingly, it is not mere human intervention in the operation of a machine (for example, turning it on and off, or the initiation of a process) which renders its output hearsay; such human intervention must directly go to the very content of the printout or record itself. Thus it is somewhat difficult to see how CCTV footage could ever truly be equated with a computer printout which relied on human input for its content; the camera simply records whatever is in its field of vision. Such footage thus does not readily fit into the category of an out-of-court statement. Phipson on Evidence so agrees (18th Ed., 2013, at paras. 28-28 to 28-29). In essence, therefore, it is very difficult to see how such footage is to be regarded as hearsay, for the simple reason that it does not amount to a statement by some person who made a critical input giving rise to its content. Rather, at least at the level of principle, it is correctly classified as real evidence. In this regard see also the judgment of the Court of Appeal (Birmingham J.) in DPP v Kirwan [2015] IECA 228 at paras. 37 and 38. Therefore it follows that evidence of the functionality of the system is not necessary so as to arrive at this conclusion.
49. At the outset of her ruling (para. 17, supra) the learned trial judge stated that the footage in question may be hearsay or it may be real evidence, an issue which she could not decide upon in the absence of any evidence to indicate whether or not there had been human intervention in its creation. It seems quite clear, therefore, that in her view such evidence was required to determine this point. She did not expressly suggest any other purpose for its reception. However, on my analysis of the law, this question simply does not arise. It therefore follows that the trial judge relied upon authorities which are not applicable to CCTV footage. Insofar, therefore, as she based her decision on the absence of evidence to decide the hearsay/real evidence issue, I believe that she was incorrect in the ruling so made.
50. I do not believe that the decision in R. v. Cochrane impacts upon this view. Briefly stated, the accused was charged with three counts of theft by withdrawing cash from his account with a building society, an employee of which had erroneously credited that account with an amount far in excess of the sums lodged. The prosecution wished to rely on the printout from the ATM machine, also in the judgment called a “till roll”, created at his local branch. The information on that printout showed, inter alia, the amount of the withdrawals, which could not have been recorded unless the ATM had received information linking his PIN number and card with his particular account. This data was not inputted at the point of withdrawal, but rather came from a mainframe computer located elsewhere. In the absence of any evidence about that computer, the issue of admissibility arose.
51. In its consideration of this issue the Court of Appeal (Criminal Division) referred to two statutory provisions of potential relevance (since repealed), namely, section 69 of the Police and Criminal Evidence Act 1984, which dealt with evidence from computer records, and section 24 of the Criminal Justice Act 1988, which applies to the admissibility in criminal proceedings of a statement in a document, inter alia, created in the course of a trade, business, profession or occupation. This provision is similar to section 5 of the Criminal Evidence Act 1992 in this jurisdiction. The judgment then continued by making the following observations:-
“In the end, however, it is clear that, whether or not the judge's view was that section 69 of the 1984 Act applied or that at least some of the entries in the till rolls relied upon by the prosecution were real evidence in the sense that they were direct evidence of the transactions carried out, it was necessary for evidence to be adduced on behalf of the prosecution to explain how each of the relevant pieces of information on the till roll came into existence. In particular, it was necessary that appropriate authoritative evidence should be called to describe the function and operation of the mainframe computer, including the extent to which it brought to bear information stored within it in order to validate a transaction and to enable an appropriate record to be made on the till roll. …
… [W]hat [the trial judge] required was authoritative evidence about the operation of the relevant machines rather than legal authority. Without the basic evidence, it is impossible for this court to decide whether or not section 69 of the Act of 1984 could have been applied. We are satisfied that the prosecution failed to adduce adequate evidence to enable the court to rule properly that the till rolls were admissible evidence; and, in the absence of the till rolls, the prosecution case could not be proved.”
52. It is somewhat unclear whether these passages were intended to address solely the statutory provisions in question, in which event their relevance would be restricted and would not require further consideration in this case, or whether such were to apply to computer material only, or even more broadly were to cover the admissibility of printouts generally. This lack of clarity may lead to a possible view that R. v. Cochrane in effect requires evidence of the workings, function and operation of a machine regardless of which side of the hearsay/real evidence divide the machine falls on. This may have been what the trial judge had in mind when one considers what further she said on this point.
53. Having drawn attention to the absence of any evidence as to the “basic workings of the system”, giving as an example of same the question of whether it operates on a time basis or time sequence, the learned judge went on to say that:
“Before this Court can decide whether the CCTV is admissible, whether as direct evidence or hearsay, it is necessary for the prosecution to call the appropriate authoritative evidence to describe the function and workings of the CCTV system, which is in effect a computer, and I’m bound by the authorities in Murphy and in the Meehan case in this regard.”
She characterised the requisite evidence as “simple matters” - proof of how the system works, its sequence, the date and time, how it records - and said she could not understand why the appellant had not adduced same. In its absence, the CCTV footage was inadmissible. Quite clearly, therefore, in so stating, she very much had in mind R v. Cochrane, and perhaps understandably so, given that it was cited with approval in both Murphy and Meehan.
54. In my view, however, Cochrane does not require evidence of such a nature in respect of the workings of a CCTV system, whose output, as I have said, must be regarded as real evidence. That decision related to the absence of any evidence to explain how critical information contained in the till roll came into existence. All that was established as to how the ATM associated the applicant’s PIN number and card with his bank account was that it was dependent on a mainframe computer about which nothing was known, not even its location. The same concerns would not appear to have arisen if all of the information was generated solely by the branch computer, which was the only device about which evidence was tendered at trial. Therefore it may well be to over-read the judgment even to say that it applies to all computers. Whether this is correct or not, the facts of the case are wholly different from those in the instant situation.
55. Quite obviously, without someone giving evidence as to the workings of the mainframe computer, no trier of fact could be expected to understand how such a machine operates or even what its function or role was in the overall process. The same could not be said of a CCTV camera, as such devices have become ubiquitous in everyday life and their essential purpose and operation would be readily apparent to any reasonable person, even if an explanation at a scientific or technical level might understandably be difficult for most members of society to follow. Therefore, in my opinion Cochrane was addressing a device which cannot be equated to the system in play in this case. Consequently, I do not accept that the judgment as such applies to a CCTV system. This conclusion, however, is not necessarily the end of the evidential inquiry.
56. The finding that this type of evidence should be regarded as real evidence should not in any way be read as suggesting that the admissibility of such footage can never be challenged; far from it. It is not the case that CCTV evidence should, without exception, go to the jury. The essential point decided by this judgment is simply that the actual footage recorded by a CCTV system is not hearsay and therefore is not open to objection on that ground; however, all other sustainable grounds of objection continue to apply.
57. Depending on circumstances there are many matters capable of giving rise to concern regarding such evidence, including any discontinuity in the recording, parts being unintelligible or indecipherable, or segments being of substandard quality either visually or audibly. The potential for manipulation, editing or tampering may or may not give rise to issues. In addition, it seems evident that a person operating the parameters by which the camera records (e.g. by switching it on and off, the tracking of a particular object or person, its directional focus etc.), although not altering the content of the footage which is actually recorded, can play a significant role in determining what evidence is produced, what evidence could have been produced and what is excluded.
58. Like all pieces of evidence, CCTV footage must be proved in an appropriate way and to the required standard. I do not accept that some notion of judicial notice, or any similar type of approach, plays any part in satisfying this requirement, nor do I believe that there exists any type of presumption to the effect that security systems operate as designed or function as intended (see para. 25, supra). In the established phraseology, the evidence should prove the provenance and authenticity of the footage; the recording must be intelligible and of sufficient quality, and must also be relevant and have probative value. In addition, the party seeking to adduce such evidence must be able to account for its history from the moment of its recording until its production in court, this to exclude the possibility that it may have been interfered with (R v. Robson & Harris). Obviously, it is open to the accused person to test this evidence in the normal way and to raise any admissibility objection that might be open to him on both the law and the facts: the exclusionary rules, fair procedures, illegality and unconstitutionality come to mind. However, once the above requirements are satisfied, then the material in question will normally be available for consideration in the same way as any other piece of real evidence so tendered.
59. Finally, could I say that CCTV is now frequently used in a great number of criminal trials and is often described as “best evidence”, and it is difficult to argue with that perception. Equally, however, that same characterisation of the evidence is the very reason why courts must remain vigilant to ensure the integrity of each piece of such evidence used in the prosecution of an accused person.
60. In this particular case the concerns of both the respondent and the trial judge related to matters such as whether the date and timing of the recording were accurate, how was the camera mounted, i.e. in a fixed position or rotating, whether the recording captured everything within its line of vision and, finally, whether the recorded images could be enhanced. Given the evidence of both Garda Smith and Mr. Murphy, these points are not of significance, particularly so when the disc is viewed. It is not at all clear, for example, how the movement of the camera could have a bearing on whether the footage captured by it was hearsay: rather, it seems that these matters should properly be considered as going to weight or credibility but not to admissibility. Moreover, even at the most general level it is impossible to see how such objections could be seen as a basis on which to exclude the evidence.
61. It will be recalled that the investigating garda timed his arrival at the complex and at that point observed an individual whom he later identified in the footage as being the accused person. He also witnessed a significant part of the incident, then ongoing. The images as recorded showed that very incident, the subject matter of the investigation. Thus, quite evidently, the footage was recorded at a time which coincided with the garda’s arrival and presence at the scene. In any event, the recording itself expressly gives the date and timing of events, both of which can be taken as accurate as the same were verified by Garda Smith’s evidence.
62. Whether the camera was in a fixed position or capable of rotating may be relevant if it was suggested that matters pertinent to the investigation or to any defence point were recorded but not produced as part of the download; however, no such suggestion has been made. In addition, however, the footage clearly shows that the angle of each camera does not move and that they recorded what was in their line of vision. Moreover, no objection was raised to the competence of Mr. Murphy to download and burn the relevant footage, nor was it alleged that he did so incorrectly. Likewise it was never argued that the footage in question had been edited, tampered with or fabricated in any way. Accordingly, I am entirely satisfied that when the footage is considered in conjunction with the evidence given, the DPP had discharged the evidential requirements to the required standard.
63. Therefore, to summarise the general law on this issue:-
(i) CCTV footage, as a matter of principle, should be regarded as real evidence and not as hearsay; evidence as to its operation and functionality is therefore not required to establish this;
(ii) If specific circumstances should put this distinction or conclusion in issue, the same should be determined in the normal way;
(iii) Material generated by other machines or devices, such as computers, may either be hearsay or real evidence; this depends on whether or not what is sought to be tendered is the direct product of human intervention;
(iv) Human intervention in this context means that such material has passed through a human mind and is simply reflective of human input;
(v) CCTV footage does not enjoy any evidential presumption, nor should a court take judicial notice of it;
(vi) Rather, it must be proved in an appropriate manner and to the required standard; depending on challenge or concession this will, in part, be case specific;
(vii) In general, its provenance and authenticity must be established, as must any other material requirement normally associated with real evidence, such as relevance, probative value etc;
(viii) Objection to its admissibility may be taken on any sustainable ground, including those covered by the exclusionary rules, or such other as may arise on either the facts or the law of the case;
(ix) As with any piece of admissible evidence, its weight, value and credibility are matters for the jury;
(x) Because of its potency, care must be exercised to ensure the overall integrity of such evidence.
64. Accordingly, the ruling of the learned trial judge on this issue was incorrect.
Issue 2: The Memorandum of Interview
65. As above indicated, the respondent maintained his right to silence during the first and second interviews held on the 19th and 20th August, 2011. During the third interview, having stated that he was on the premises because he had followed a group of kids in there, that he had seen smoke and flames, and that when he had tried to get out the gardaí were in his way, the following relevant exchange took place:-
“Q. So what business had you being in the car park?
A. No business, I was trespassing.
Q. Had you permission to be in the car park?
A. No.
Q. Why did you follow [the kids]?
A. ‘Cos I thought something was happening, which it was. I just went down then.
Q. How long were you in there before guards arrived?
A. Two minutes, literally, probably less.
Q. If we have CCTV will it show you at this car that burned out?
A. No.”
66. On his re-arrest in November, 2011 the respondent, as previously stated, was again interviewed on three occasions. During the first and second interviews he was questioned in a manner much more specific than at any time during his first period of detention. In fact, much of what was put to him during these interviews stemmed from the availability of the CCTV footage and the results of the forensic testing of the petrol cap, two pieces of fairly crucial evidence not in the possession of the gardaí on either the 19th or 20th August, 2011. To all such questions his answers were entirely uninformative.
67. Immediately prior to the commencement of the third interview on the 16th November, the gardaí invoked section 19 of the Criminal Justice Act 1984, as substituted by section 29 of the Criminal Justice Act 2007 (“section 19 of the 1984 Act”). As I will be dealing with the section in some detail in a moment, it is sufficient to say at this point that, in certain circumstances and subject to certain conditions, if a person fails or refuses to account for his presence at a particular place at or about a particular time, then in his subsequent trial the court may draw such inferences from that failure or refusal as appear proper.
68. Thereafter, the third interview (or “the disputed interview”) commenced and during the course of the question and answer session the following exchanges took place:-
“Q. Were you present when the car was set on fire?
A. I’m telling you I was there, yeah.
Q. What were you doing at the car?
A. I don’t remember, I was out of my head.
Q. At any stage when you were present in there did you stop to think of how dangerous your actions were?
A. I can’t remember my actions.
Q. Is there any reason for or have you any defence for your actions in committing criminal damage to [an identified motor vehicle] on the 19th August, 2011, in the car park of [the complex in question]?
A. I can’t really remember, there could have been because I was there.
Q. Is there any persons you are going to rely on as a witness or as an alibi regarding the criminal damage to [the said car]?
A. I have nobody to rely upon. I couldn’t give a rat’s ass at this stage. I’ll go home and blow up the whole apartment block. Stick that in it as well.
Q. Is there anything you want to say to the people that were affected by this car going on fire?
A. I’d like to say sorry to everybody that was affected.
Q. Did you mean to damage the apartment block itself?
A. No.”
69. At trial the prosecution did not in fact seek to rely on the provisions of section 19 of the 1984 Act; rather, they took the view that this evidence amounted to an express admission by the accused that he was present when the car was set on fire and an implicit admission that he was responsible for such fire and the damage so resulting.
70. The accused challenged the admissibility of the memorandum of this interview on a number of bases, only one of which has any continuing relevance as the rejection of all other grounds has not been appealed to this Court. This was that the gardaí had no lawful authority to invoke section 19 of the 1984 Act because during the course of his previous detention he had given an account of why he was at the complex on the night in question and what he was doing there. Accordingly, it was submitted that there had been no failure or refusal to account within the meaning of the section.
The Trial Judge’s Ruling:
71. On that issue, the trial judge ruled as follows:
“In relation to the last argument [based on this objection], I have concerns in relation to the invoking of section 29 [of the 2007 Act] in this case. Initially Mr McD gave most of his answers as ‘no comment’ on the 19th of August 2011. However, in the later part of the interview of the 20th of August 2011, [he] gave an account of his presence at [the complex] for the evening/night of the 19th of August 2011. He stated that he saw four or five youths or kids running into the car park and he followed them to see what was happening and he saw smoke and flames so he turned around and tried to get back out of the gate and the gardaí were standing in his way. In this case the memorandum of interview would not be admitted so that the jury could be invited to draw inferences from [his] silence because he answered all of the questions put to him apart from one question during his absence on the -- during his presence on the CCTV which would not go to the jury in any event. In the circumstances, section 29 of the 2007 Act does not apply where an account has been given and I've taken into account and I am bound by the decision of the Court of Criminal Appeal in the case of the DPP v. Devlin and I note the comments of Judge Fennelly in this regard. ‘Section 29 only operates where there has been a failure or refusal of a person to account for their presence.’ This was not the case for Mr McD. [He] elaborated somewhat on his initial account in his later interview in November, but I have a concern that he did so under some duress and under an illegitimate pressure under the threat of section 29. The question therefore arises whether his engagement was of a voluntary nature and I have concerns in this regard, particularly having seen the video of the interview, and in the circumstances I am not satisfied beyond a reasonable doubt as to the admissibility of the interview.”
Submissions on behalf of the appellant
72. The appellant makes three broad submissions on this point: first, that the trial judge erred in the application of DPP v Devlin [2012] IECCA 70 (“Devlin”); secondly, that she likewise erred in treating the account given by the accused on the 19th/20th August, 2011, of his presence at the incident location as a bar to the invocation of section 19 of the 1984 Act in the subsequent detention; and, thirdly, that even if section 19 had been wrongly invoked, the learned judge was also incorrect in holding that the replies recorded in the memorandum of interview resulted from duress or other illegitimate pressure simply because of the invocation of that section. Evidently the last point will not arise if the ruling regarding the use of section 19 cannot be sustained.
73. The DPP submits that the gardaí were lawfully entitled to activate the provisions of section 19 of the 1984 Act and that the replies given during the third interview on the 16th November, 2011, could not be regarded as having been given under duress or illegitimate pressure simply due to the invocation of that section. If the learned trial judge was correct, it would mean that a suspect who remained silent could have inferences drawn from that fact to prove his guilt, whereas the suspect who gave highly inculpatory answers could not have them used against him at trial. There is, it is said, no logic or authority to support such a proposition.
74. It is also said that at the relevant time, fresh evidence had come to light and that the second arrest and detention of the accused had been lawfully authorised. Furthermore, the gardaí explained the relevant statutory provisions, which, with the benefit of legal advice, the accused clearly understood. In addition, there is nothing in the section which prevents its use in a subsequent interview even where a suspect has given some account in a previous interview. Finally, it is also claimed that the trial judge failed to properly appreciate that the prosecution was not seeking to rely on section 19 for the purpose of drawing any adverse inference against the accused.
Submissions on behalf of the respondent
75. The respondent submits that the trial judge was correct in her decision to exclude the memorandum of interview, in particular in respect of the answers obtained after the invocation of section 19 of the 1984 Act. He also claims that the trial judge correctly applied the Devlin case.
76. The respondent further submits that the basis of the trial judge’s ruling on this issue was that she was not satisfied beyond a reasonable doubt that the answers given in interview were voluntary. He states that this was a mixed finding of fact and of law and that this Court should not overturn such a finding, particularly as her decision on involuntariness was reached having viewed the video of the interview in question. In this context he invites this Court to have regard to the video of the interview before it assesses whether the trial judge was correct in reaching the conclusion which she did.
77. Without prejudice to the foregoing, the respondent also contends that the trial judge was correct in ruling that the use of section 19 of the 1984 Act was such that the answers given in interview were not voluntary. He submits that the wording of the Act must be construed strictly and that inferences may only be drawn under section 19 where the accused “failed or refused to give an account”. There was no such failure in his case as he gave an account of his presence at the scene when first arrested and interviewed on the 19th August, 2011; whether or not his explanation was credible or reasonable was for the jury to assess.
78. Upon being re-arrested on the 16th November, 2011, the respondent chose to exercise his right to silence, at which point the gardaí purported to invoke the provisions of section 19 of the 1984 Act. He submits that in circumstances where he had previously given an account of his presence in the complex in question, it was not open to the gardaí to utilise a provision which is premised on a failure or refusal to give such an account. As he was only persuaded to depart from the exercise of his right to silence by the utilisation of a statutory provision, section 19 of the 1984 Act, which had no application, the respondent claims that the trial judge was correct in finding, as a matter of fact, that the answers given were not voluntary and in exercising her discretion to exclude all such answers.
Discussion/Decision:
79. The right to silence in its variety of forms is not only based on the common law, but also has a strong constitutional setting. In the context of a detained person who is under interrogation as a suspect in the commission of a criminal offence and who subsequently is in fact charged with such an offence, the right, if in issue at the trial, is firmly anchored in Article 38.1 of the Constitution. This is particularly so where, as in this case, the potential consequences of exercising that right are directly in play at the trial. Therefore, it is not necessary to say where in other circumstances the right can also be found, such as in Article 40.3.1° of the Constitution, or in Article 40.6.1° as a corollary to the right of freedom of expression, as stated by this Court in Heaney v. Ireland [1996] 1 I.R. 580 at p. 585 (“Heaney”), and reiterated in Rock v. Ireland and the Attorney General & Ors [1997] 3 I.R. 484 at p. 499 (“Rock”).
80. This right, however, is not absolute, and over many years has been the subject of numerous statutory encroachments, on both the civil and criminal side of the system. These have taken a variety of different forms and have various different consequences. Dealing with the criminal context, some provide, for example, that in certain circumstances a failure to account for one’s movements, or to give one’s name and address, is a criminal offence punishable by a term of imprisonment, usually six months (section 52(2) and section 30(6) of the Offences Against the State Act 1939, respectively). Others provide that a failure or refusal to answer any questions material to the investigation of an offence entitles a court to draw such inferences as may appear proper (section 2 of the Offences Against the State (Amendment) Act 1998). Yet again, there are provisions where such inferences may be drawn if an accused person fails or refuses to account for any object, substance or mark found on his person or in his possession, or where such a person fails to mention a particular fact which he subsequently seeks to rely on in his defence (section 18 and section 19A of the 1984 Act, as substituted by section 28 and inserted by section 30 of the Criminal Justice Act 2007, respectively). However, the section with which this appeal is directly concerned is, as above stated, section 19 of the 1984 Act. Whilst all of these provisions have significant elements in common, they also have a number of differences which, depending on circumstances, may be relevant.
81. Before dealing with the relevant section in this appeal, it should be noted that several of these provisions have been the subject matter of unsuccessful constitutional challenges. In Heaney, this Court held that section 52 of the 1939 Act was constitutional, although that section was subsequently found by the European Court of Human Rights to be in breach of Article 6 of the European Convention on Human Rights (Heaney and McGuinness v. Ireland (2001) 33 EHRR 12). This Court held in Rock that sections 18 and 19 of the 1984 Act were not unconstitutional on the grounds advanced. Consequently, no issue arises for consideration at this level of legal engagement.
82. Similarly, the European Court of Human Rights has held that the right to silence is not an absolute right and that in certain circumstances its exercise can have consequences for the accused person (John Murray v. the United Kingdom (1996) 22 EHRR 29; Condron v. the United Kingdom (2001) 31 EHRR 1). That Court has stated on many occasions that “the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either … during police interview or during his trial cannot of itself be considered incompatible with the requirements of a fair trial” (Beckles v. the United Kingdom (2002) 36 E.H.R.R. 162, § 57; Tabbakh v. the United Kingdom, App. no. 40945/09, [2012] ECHR 407, 21 February 2012, § 24; O’Donnell v United Kingdom, App. no. 16667/10, Judgment of 7 April 2015, § 48). The case law of the Court thus permits the drawing of such inferences in certain circumstances, provided that appropriate safeguards are in place.
83. Notwithstanding these authorities, it still remains the situation that the statutory provisions in issue constitute an impairment of a right which has protection at constitutional level.
84. Section 19 of the 1984 Act, in its material terms, reads as follows:-
“19.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused -
(a) … on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) …
was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, … the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged … may draw such inferences from the failure or refusal as appear proper …” (Emphasis added).
85. There are several conditions set out in the full section which must be satisfied before its provisions can be invoked. The section also lays down a number of other safeguards, such as that one cannot be convicted of an offence solely or mainly on the inferences so drawn (section 19(2)). Section 19(3) provides that subsection (1) shall have no effect unless the accused was told in ordinary language what the effect of the failure or refusal to account might be, and was informed before such failure or refusal that he had the right to consult a solicitor and that he was afforded an opportunity to so consult before the failure or refusal occurred. Moreover, section 19 can have no application unless the interview process is being electronically recorded, as it was in this case. None of these points or factors, however, are in dispute on this appeal, with the single issue being whether or not the answers given in the third interview on the 19th/20th August, 2011, were such that the section could not be lawfully invoked against the accused in the last of the interviews conducted during his re-arrest and detention in November of that year. In other words, in light of such answers, could it be said that the accused had, within the meaning of the section, failed or refused to account for his presence as was demanded. Accordingly, this issue would seem to require some evaluation of what is an appropriate level of engagement so as to prevent the section from operating against an accused person.
86. The parties have referred to two cases only in their written submissions on this point. These are The People (DPP) v. Devlin (“Devlin”) and DPP v. Donnelly [2012] IECCA 78 (“Donnelly”). As is evident from the ruling of the learned trial judge, she considered herself bound by what the court had said in Devlin in reaching her decision to rule inadmissible the memorandum of interview in question.
87. The appellant distinguishes Devlin, saying that as the case turned upon its own facts, it is not an authority for the proposition that once any form of explanation or account is given by a suspect, then section 19 of the 1984 Act cannot thereafter be invoked against him. In reply, the respondent, not surprisingly, is satisfied to rely upon the trial judge’s interpretation and application of that decision.
88. Devlin was a case in which the accused was convicted by the Special Criminal Court of possession of a pipe bomb in circumstances where that court drew inferences under section 18 of the 1984 Act from his alleged failure to account for having certain items on his person, namely, a box cutting knife, insulating tape and black gloves. This alleged failure was seen as corroborative of the other evidence adduced, upon which his conviction was based. One of his grounds of appeal challenged the correctness of the court’s view that he had “failed to account” for the presence on his person of these items; in fact, only two remained in issue, as ultimately the prosecution did not rely on the gloves as being relevant.
89. The Court of Criminal Appeal (CCA), in its judgment given by Fennelly J., stated that, based on the trial court’s appraisal of the other evidence in the case, “the conclusion [of guilt] of the Special Criminal Court was vitally dependent upon the view it took of the answers given by [Mr Devlin] during the Garda interviews.” These answers, and their critical significance in preventing the section from operating against the accused, appear in the following passage of the judgment:-
“He [the accused person] said that both these items had been in his pocket the last time he had worn that jacket. This may or may not be a satisfactory explanation, but it was an answer. It does not amount to a failure or refusal to account.” (para. 36)
90. The Court went on to state that:-
“In view of the fact that the Special Criminal Court was not satisfied beyond reasonable doubt that the pipe bomb was in the possession of the appellant based on observations of his activity at the boot of the car, the decision came to be crucially dependent on the inferences drawn pursuant to section 18 of the Act of 1984. It is not at all clear, on the evidence, that the appellant failed to account for the most important two items. Section 18, subject to observation of the procedures it lays down, permits evidence to be given of the ‘failure or refusal’ of a person to account for, inter alia, an object that was ‘in or on his or her clothing and footwear’ or ‘otherwise in his or her possession.’ That provision does not apply where an account of any kind has been given.” (Emphasis in original) (para. 38)
91. It is undoubtedly on the basis of these two passages that the learned trial judge concluded that by virtue of the answers given in August (para. 65, supra), Mr McD had not failed or refused to account for his presence at the apartment complex in question on the occasion when the offences above outlined were committed.
92. Before turning to the trial judge’s application of Devlin, it is worth briefly mentioning the only other case referred to on this point, Donnelly, with which the appellant seeks to draw an analogy. In that case the accused, who was convicted by the Special Criminal Court of a charge of membership of an unlawful organisation, had given a short statement explaining why he was in Letterkenny on the night in question and denying membership of any illegal organisation. He had also denied knowledge of a number of items recovered from the car in which he had been travelling. He had otherwise remained silent in response to every question put to him across seven interviews during his detention; O’Donnell J described his statement as “a small island of volubility in an ocean of silence.”
93. The exception to the right to silence at play in Donnelly was section 2 of the Offences Against the State (Amendment) Act 1998, which allows for inferences to be drawn from the failure of an accused “to answer any question material to the investigation of the offence”. The CCA, whilst acknowledging that there were certain superficial similarities between that case and Devlin, went on to point out that there were also “significant differences” and that “a clear distinction” existed between section 2 of the 1998 Act and section 18 of the 1984 Act: these same differences exist, of course, between the said section 2 and section 19 of the 1984 Act.
94. Under section 2 of the 1998 Act, the test is not whether an account was given, but rather whether the accused had failed to answer any question material to the investigation of the offence. Furthermore, on the facts of the case, it was not simply that the accused had failed only to answer the occasional question but had otherwise been largely responsive; in fact he had refused to answer virtually every question put to him. The CCA therefore held that the trial court had been entitled to find that Mr Donnelly, notwithstanding his short volunteered statement, had “failed to answer questions material to the investigation” of the offence and thus had been fully entitled to draw the inferences which it did from this failure.
95. The CCA also reached a similar conclusion in DPP v. Vincent Kelly [2007] IECCA 110. This was another case in which inferences had been drawn under section 2 of the 1998 Act. Although the accused person did deny membership when asked directly whether he was a member of an illegal organisation, he otherwise made no reply in relation to all other material questions put to him. The CCA was satisfied that the trial court had been entitled to draw inferences under section 2 from his failure to answer these questions. As he had failed to answer virtually every question, it was not necessary for the trial court to have identified which particular questions were “material” questions.
96. Accordingly, I do not find any support in Donnelly for the appellant’s submissions: that case, in my view, does not stand for the proposition that inferences may be drawn under section 19 of the 1984 Act from a failure to answer questions even where the accused person had earlier given an account of his presence at the particular location at or about the time of the offence. Whilst the furnishing of some information will not prevent inferences being drawn under section 2 of the 1998 Act from a failure to answer any other question material to the offence, the giving of an account does however preclude the drawing of such inferences under sections 18 and 19 of the 1984 Act. The Donnelly case is thus of very limited assistance in this regard.
97. The critical question is, of course, whether the answers given by the respondent in the third interview on the 19th/20th August, 2011, precluded the invocation of section 19 prior to the commencement of the disputed interview during his subsequent detention. Many of the submissions made on this point were addressed to the issue of whether the respondent’s engagement during the first period of interrogation could be described as amounting to a “failure or refusal” to give an “account” under the section. What therefore, do these words mean?
98. Where a person has declined or refrained from giving an account when requested to do so, the same may be considered as a refusal within the meaning of section 19 of the 1984 Act. There is a deliberateness to such a refusal, an unwillingness to engage with the investigating authorities. A failure, on the other hand, may be voluntary or involuntary: it means simply that the person did not provide an account. The reason for this may be deliberate choice, in that despite the section and its consequences the person may decide to continue to rely upon his right to silence. However, it may also be because the person in question simply cannot remember why they were at the place, or even that they were at the place at all in the first instance; this could be due to the influence of intoxicants or other such causes. Further, where a failure to give an account is caused by, say, a blackout associated with an underlying medical condition, it seems highly likely that no “proper” adverse inference could be drawn from such failure under the section. Whilst all refusals are failures, not all failures are necessarily refusals. In any event, this point, in my view, is not central to the present issue.
99. More important is the definition of “an account” for the purposes of the section. In Devlin, the CCA held that while the accused person’s explanation for the presence in his jacket of the knife and tape “may or may not” have been satisfactory, nonetheless it was an answer to the question asked regarding his possession of those items. It thus did not amount to a failure or refusal to account. As above mentioned, Fennelly J. stated that section 18 “does not apply where an account of any kind has been given.” As sections 18 and 19 of the 1984 Act are identical in their operation, it would be difficult to say that an interpretation of one such provision would not apply to the other. Therefore it might usefully be asked what the Court intended by this observation.
100. When considering this point it is noteworthy, for instance, that section 19 of the 1984 Act does not contain a provision similar to that in section 2(4)(b) of the Offences Against the State (Amendment) Act 1998, which provides that “references to a failure to answer include references to the giving of an answer that is false or misleading”. So too with section 52(2) of the Offences Against the State Act 1939, which provides that in certain specified circumstances a person, when demanded by a member of An Garda Síochána, who fails or refuses to give an account of their movements and actions during any specified period and to provide all information in their possession in relation to the commission or intended commission of an offence by another person, “or gives to such member any account or information which is false or misleading”, is guilty of an offence. Evidently such a course was open to the Oireachtas when drafting the 2007 amendment to the 1984 Act but this option was not utilised and perhaps for very good reason, given the quite distinctive nature of both the crimes and persons to whom the 1939 Act is addressed.
101. Neither in the express language of the section nor in the judgment of the CCA in Devlin is there any reference to an account needing to be coherent or rational, or any suggestion that an account which is demonstrably false and misleading shall be regarded as a non-account. Notwithstanding that, it seems to me that if this statement of the CCA is to be taken literally, such that any account would be sufficient to prevent the application of sections 18 and 19 of the 1984 Act, it could easily become effortless for an accused person to circumvent the operation of those provisions. It surely cannot be the case that a person being investigated in respect of an arrestable offence can nullify the operability of this statutory provision by simply giving any manner of account, however plainly unrelated or potentially farcical it may be. To hold otherwise would be to enable such a person apprised of this fact to void the provision of its utility. It is equally apparent, however, that the views of the investigating gardaí cannot be determinative of whether an account has or has not been given for the purpose of the section. They cannot seek to invoke its terms simply because they do not like an account as given, or because they do not regard it as satisfactory, or because they do not think it sufficiently explains the person’s presence at that location. Furthermore, the issue of credibility is not for them. Therefore the interviewer cannot be arbiter in that provision. However, it must be the case that a minimum level of plausible engagement is required before an account can satisfy the requirements of section 19 of the 1984 Act. What that necessarily will be will involve a consideration of the entirety of the circumstances presenting in each case.
102. Consequently, if such became necessary, the establishment of more precise parameters by which one could evaluate whether a given account would be such as to satisfy section 19, or not, as the case may be, may have to be determined largely at the level of principle. However, what these precise parameters might be does not call for further examination in this case as I am satisfied that the explanation given by the respondent during the third interview on 19th/20th August, 2011, amounted to an “account” at that time for the purposes of section 19 of the 1984 Act. It was not demonstrably incapable of belief or so incredible as to merit only being disregarded as untrue. Accordingly, if that was the true issue which the section presented on this aspect of the appeal of satisfying the section, I would not disagree with the conclusion of the trial judge. However, in my view the key point arising is a different one.
103. Whilst the decision of the trial judge that the accused gave an account was correct, it failed to appreciate that such an account was given in the context of what was put to the accused during the course of his first arrest. If matters had not moved, I would have agreed with her conclusion in that regard. But matters did change, and change significantly, with the obtaining of additional evidence subsequent to his release on the 20th August, 2011. That evidence was such as to justify the issue of a warrant under section 10 of the 1984 Act for his re-arrest in November of that year. So by the time the second series of interviews took place, the investigation, in terms of evidence gathering, had moved quite significantly. This, for the reasons which I am about explain, must thus be regarded as the immediate background by which the section 19 issue must be determined. Further, without this critical step I would not have reached the conclusion which I have.
104. Although sections 18, 19 and 19A of the 1984 Act are designed to cover different situations, each of these provisions share a commonality in their respective wording which places the underlying failure or refusal in a circumstantial and temporal context. In both section 18 and section 19, for a failure or refusal to come within the section, the account demanded and not given must be one “…which in the circumstances at the time clearly called for an explanation…” (inserted by the substitution of sections 18 and 19 by sections 28 and 29 of the Criminal Justice Act 2007). Section 19A is similarly phrased. Accordingly, the emphasised portion of the section (para. 84, supra) positions the obligation to account in a given context. What, therefore, does this mean?
105. Quite evidently, when sitting alone or when directing a jury, the trial judge must determine whether what was put to the detainee in the circumstances existing at the time clearly called for an explanation. It is only if there was a failure or refusal within this context that the inference provisions could apply.
106. In the absence of any authority in this jurisdiction on the point, and notwithstanding some differences with the corresponding provisions in England, the following statement from the Court of Appeal (Criminal Division) in R. v. Argent [1997] 2 Cr App R 27 is instructive as offering some guidance on what the above highlighted phrase could refer to; Lord Bingham L.C.J. said:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned. The time referred to is the time of questioning and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression “in the circumstances” restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances: and those are only examples of things which may be relevant…”
The relevance of this case in the context of the instant appeal is its confirmation that a failure or refusal to account must be evaluated in the context of the circumstances then existing, that is, at the time when the request for an account was made.
107. As there is nothing in section 19 of the 1984 Act which states that its use is restricted to a single occasion, it seems to me that the question of a failure or refusal must be judged by reference to what happened on the 16th November, 2011, given the new evidence which the gardaí had accumulated in the intervening period and which was put to the accused during the first and second interview sessions held on that date. That new evidence, which is outlined at para. 5, supra, included the critical CCTV footage of the incident in question. The question for determination, therefore, is whether, by reason of his answers given during those interviews, it was permissible for the gardaí to invoke section 19 prior to the commencement of the third interview.
108. Given my view that this is the correct interpretation of the section, and in light of the series of answers given during the first two interviews conducted on the 16th November, I am satisfied that by any yardstick or threshold by which compliance with section 19 must be judged, such answers could only be regarded as an outright refusal to engage with the new evidence as put to him. As a result, the gardaí were well justified in invoking section 19 of the 1984 Act.
109. Accordingly, for these reasons the trial judge misinterpreted the section and was wrong in law to conclude that on the 16th November, 2011, the gardaí had no jurisdiction to invoke section 19 of the 1984 Act. It follows from this conclusion that no question arises as to whether or not it could be said that, by virtue of this invocation, the alleged confession was involuntarily obtained.
Whether there should be a retrial
110. As appears from the beginning of this judgment, the appeal to this Court has travelled through the prism of section 23 of the 2010 Act. That section was intensely scrutinised in DPP v. J.C [2015] IESC 31. Despite the divergent views expressed, it is inherent in all the judgments that this section should not be considered as a routine vehicle by which the DPP, whenever she is dissatisfied with a ruling, can seek the opinion of this Court or the Court of Appeal, as the case may be. The section in question is a “with prejudice appeal” provision, which has the fundamental effect that an accused person acquitted at trial can have such acquittal set aside and be re-tried on exactly the same charges.
111. This is to be contrasted with section 34 of the Criminal Procedure Act 1967, as amended, whereunder the DPP has full access to the Supreme Court (now Court of Appeal) on any question of law which arises out of a non-guilty verdict by direction. Such a reference has no impact on, or adverse consequences for, the subject person. This, apart from a section 29 certificate (section 29 of the Courts of Justice Act 1924, as amended), has been the standard vehicle of obtaining the opinion of this Court on an issue of law so arising.
112. This new provision of the 2010 Act substantially shifts the focus of what should be at the heart of accessing the appellate court, namely, the seeking of its views on the legal correctness or otherwise of a particular ruling. Instead it places the person in question at serious risk of being re-tried on the same charges. It is therefore critical that before invoking section 23 of that Act, the DPP must have considered the alternative route available and must be satisfied that by a consideration of all of the circumstances, including those mentioned, section 23 is still objectively demanded. Whilst I do not consider it necessary to delve further into this issue because of the submissions made, I wish to emphasise in the strongest possible terms that this provision stands outside what is normative in our criminal justice system. Accordingly, I would deprecate the random or routine use of the section.
113. In truth little was said over the course of the appeal regarding the use of this section. Indeed the matter was scarcely addressed by the respondent at all. He submits that the interests of justice do not merit a re-trial even if this Court should otherwise find against him, pointing to the time interval since the directed acquittal and the unfairness of the prosecution being permitted a second opportunity to prove its case. The DPP, in her written submissions, claims that the CCTV evidence is clearly identifiable and was in fact received by the trial court during the course of the voir dire, whilst the memorandum speaks for itself. With regard to section 23(12), the DPP submits, inter alia, that any retrial could be conducted fairly, that the lapse of time since the events in question is not such that the recollection of events by the relevant witnesses is likely to have been adversely impaired by reason of time, that the physical exhibits have been retained and are available for inspection, and that the nature of the offences in question is such that there is a strong public interest in favour of the prosecution of the person alleged to be responsible therefor. Thus it is submitted that it is in the interests of justice that a retrial be ordered.
114. In light of the manner in which the parties have addressed section 23 of the 2010 Act, I am satisfied, from a review of the evidence, that a retrial should be ordered and that the same can be conducted in accordance with due process.
115. In conclusion, I am satisfied that the ruling of the learned trial judge on both of the issues above considered was erroneous in a point of law and that, as a result, what was excluded from the jury’s consideration, namely, the CCTV footage and/or the memorandum of interview, could correctly be considered as “compelling evidence” within the meaning of that term as contained in section 23 of the 2010 Act. In addition, no reasons of a significant nature have been advanced as to why a re-trial should not take place. I would accordingly so order.
