Third Report of the Steering Committee on Audio & Audio/Video ...

Third Report of the Steering Committee on Audio & Audio/Video ...

ong>Steeringong> ong>Committeeong>on Audio and Audio/VideoRecording ong>ofong> Garda Questioningong>ofong> Detained Personsong>Thirdong> ong>Reportong> — September, 2004

ContentsForewordPagevii1. Section 1 — Background 12. Section 2 — Activitiessince ong>theong> Publication ong>ofong> ong>theong> 2 nd Interim ong>Reportong> 53. Section 3 — Policy for Preservation and Destruction ong>ofong> Tapes 134. Section 4 — Conclusions and Recommendations 175. Section 5 — Appendices19iii

Mr Michael McDowell, T.D.Minister for Justice, Equality and Law ReformI have ong>theong> great pleasure on behalf ong>ofong> ong>theong> ong>Steeringong> ong>Committeeong> on ong>theong> Audio and Audio/VideoRecording ong>ofong> Garda Questioning ong>ofong> Detained Persons, to present ong>theong> latest ong>Reportong> ong>ofong> ong>theong>ong>Committeeong>.Thisisong>theong> third ong>Reportong> ong>ofong> ong>theong> ong>Committeeong> on ong>theong> electronic recording ong>ofong> Garda questioning ong>ofong>detainees. The first report wascompleted in March 1994 and asa result ong>ofong> itsfindingsandrecommendationsa pilot scheme ong>ofong> audio/video recording ong>ofong> interviewsin selected Gardastations operated between 1994 and 1999.The second interim report, which was presented by me on behalf ong>ofong> ong>theong> ong>Committeeong> in March1999 strongly recommended that a nation-wide scheme ong>ofong> audio/video recording ong>ofong> Gardainterviews with detained persons should be commenced at ong>theong> earliest practicable opportunityand should be mandatory. That scheme has since progressed well, with 229 interview rooms in132 selected Garda stations across ong>theong> country fitted with ong>theong> required audio/video equipment.The scheme is now in operation in every Garda Division in ong>theong> country. It has, I believe, beensuccessful not least in providing a positive safeguard to persons being interviewed in ong>theong>se Gardastations with ong>theong> specialised equipment, but also in providing ong>theong> interviewing Gardaí with a wayong>ofong> defending ong>theong>mselves against unfounded accusations ong>ofong> unfair treatment ong>ofong> suspects beinginterviewed. Moreover, ong>theong> Courts can, and have, sought to view such evidence in certaininstances.The purpose ong>ofong> thisfinal report ong>ofong> ong>theong> ong>Committeeong> isto provide an indication ong>ofong> ong>theong> work ong>ofong> ong>theong>ong>Committeeong> since its last report; ong>theong> progress ong>ofong> ong>theong> scheme in ong>theong> intervening period; ong>theong>ong>Committeeong>’s views on ong>theong> scheme which is now in widespread use; and observations that ong>theong>ong>Committeeong> consider appropriate to make in ong>theong> light ong>ofong> ong>theong> experience ong>ofong> ong>theong> scheme gained,particularly, over ong>theong> past few years. On this latter point, it is important that ong>theong> scheme be inoperation for some time in order for firm conclusions to be drawn.Finally, in presenting ong>theong> ong>Reportong>, I would like to record my sincere thanks to ong>theong> many membersong>ofong> ong>theong> ong>Committeeong> who, over ong>theong> years, gave freely ong>ofong> ong>theong>ir time since ong>theong> ong>Committeeong> started itswork in 1993, and without whom ong>theong> scheme ong>ofong> electronic audio/video recording ong>ofong> interviewsong>ofong> detainees in Garda custody, as we now know it, would not have been possible. On behalf ong>ofong>ong>theong> ong>Committeeong> I would also like to record my sincere thanks for advises and assistance providedby Mr. Paul Linehan, Parliamentary Counsel in advising on and drafting ong>theong> proposed regulations.Yourssincerely,——————————————————————Mr Justice Esmond SmythChairpersonSeptember, 2004v

ForewordThe ong>Steeringong> ong>Committeeong> on Audio and Audio/Video Recording ong>ofong> Garda questioning ong>ofong> detainedpersons was established in 1993 to make recommendations to ong>theong> Minister on all aspects ong>ofong>instituting electronic recording ong>ofong> detained persons in Garda stations. The terms ong>ofong> reference ong>ofong>ong>theong> ong>Committeeong> are set out in appendix 1. The current membership ong>ofong> ong>theong> ong>Committeeong> is listed inappendix 2. Thisisong>theong> third report ong>ofong> ong>theong> ong>Committeeong>.The first report ong>ofong> ong>theong> ong>Steeringong> ong>Committeeong> was completed in March, 1994. Based on ong>theong> findingsand recommendations contained in ong>theong> report, a pilot audio/video scheme operated in selectedstations between 1994 and 1999.The ong>Steeringong> ong>Committeeong> reported again to ong>theong> Minister on its work in 1999 (ong>theong> Second Interimong>Reportong>) and, on ong>theong> basisong>ofong> itsexperience gained from careful monitoring ong>ofong> ong>theong> pilot scheme,recommended that a nationwide scheme ong>ofong> audio/video recording should proceed.At ong>theong> conclusion ong>ofong> its report ong>theong> ong>Steeringong> ong>Committeeong> indicated that it intended presenting a finalreport to ong>theong> Minister on ong>theong> progress ong>ofong> ong>theong> scheme. The Government accepted ong>theong> ong>Steeringong>ong>Committeeong>’song>Reportong> and recommendationsand authorised a nationwide scheme in July, 1999.Therefore, this third ong>Reportong> ong>ofong> ong>theong> ong>Steeringong> ong>Committeeong> is intended to describe ong>theong> progress madesince ong>theong> Government decided in July, 1999 to implement ong>theong> scheme on a nationwide basis.From a position where only a handful ong>ofong> selected Garda stations were equipped to undertakeaudio/video recording ong>ofong> interviews, ong>theong>re are now up to 229 interview rooms in 132 selectedGarda stations in all Garda Divisions using such equipment on a regular basis.Thisreport setsout ong>theong> ong>Steeringong> ong>Committeeong>’sviewson ong>theong> nationwide scheme based on ong>theong>experience gained from its widespread operation over ong>theong> past few years.vii

SECTION1Background1.1 The following is a brief background and historyong>ofong> ong>theong> scheme since its inception.1.1.2 On 29 November 1989 ong>theong> Government approved ong>theong> establishment ong>ofong> a ong>Committeeong> toenquire into certain aspectsong>ofong> Criminal Procedure. Thisong>Committeeong>, chaired by HisHonour JudgeFrank Martin, examined wheong>theong>r additional safeguards were needed to ensure that admissions bypersons detained in Garda stations are properly obtained and recorded and to makerecommendationsaccordingly.1.1.3 The ong>Committeeong> published its findings in March, 1990, and recommended that ong>theong>questioning ong>ofong> suspects take place before an audio-visual recording device; and that it should befirst introduced in selected Garda Stations on a pilot scheme basis.1.2 Establishment ong>ofong> ong>Steeringong> ong>Committeeong>1.2.1 Following publication ong>ofong> ong>theong> Martin ong>Reportong>, ong>theong> Department ong>ofong> Justice and ong>theong> GardaSíochána engaged in a period ong>ofong> extensive analysis with regard to ong>theong> recommendations relatingto electronic recording.1.2.2 Following full consideration ong>ofong> all matters and a recommendation by ong>theong> ong>theong>n Minister forJustice, ong>theong> Government approved on 26 May, 1992, ong>theong> introduction ong>ofong> both audio and audiovideorecording ong>ofong> ong>theong> questioning ong>ofong> detained persons on a pilot basis in selected Garda stationsin four Garda Districts, to include urban, rural and border areas.1.2.3 A ong>Steeringong> ong>Committeeong>, currently chaired by Mr. Justice Esmond Smyth, includingrepresentatives ong>ofong> ong>theong> Attorney General, ong>theong> Director ong>ofong> Public Prosecutions, ong>theong> Bar Council, ong>theong>Incorporated Law Society, ong>theong> Judiciary, ong>theong> Garda Síochána and ong>theong> Department ong>ofong> Justice, wasestablished to oversee matters.1.3 First Interim ong>Reportong> to Minister for Justice (March 1994) and Approval to Commence PilotScheme1.3.1 The ong>Committeeong> considered it appropriate to actively seek out ong>theong> knowledge andexperience gained in oong>theong>r jurisdictionsong>ofong> electronic recording ong>ofong> police interviewsong>ofong> detainedpersons. This involved literature reviews, fact-finding visits to England and Scotland, andinformation received via ong>theong> good ong>ofong>ficesong>ofong> ong>theong> Department ong>ofong> Foreign Affairson ong>theong> situation inEuropean Statesand elsewhere.1.3.2 The ong>Committeeong> recommended that ong>theong> pilot scheme be carried out in two stages; first,through a preliminary, optional, scheme confined to persons detained at one Garda Station i.e.Tallaght ; and subsequently through a full pilot scheme, in accordance with agreed terms ong>ofong>reference.1.3.3 The ong>Committeeong> considered that interviews in Tallaght Garda Station should beelectronically recorded in relation to seriousong>ofong>fencesand, specifically, with regard to:1

(i) all persons detained under section 4 ong>ofong> ong>theong> Criminal Justice Act, 1984(ii) all persons detained under section 30 ong>ofong> ong>theong> Offences against ong>theong> State Act, 19391.3.4 The requirement for a contemporaneousnote ong>ofong> an interview under ong>theong> JudgesRulesandong>theong> Custody Regulations was not affected by ong>theong> new Audio Video proposals.1.3.5 The ong>Steeringong> ong>Committeeong> went on to make furong>theong>r recommendations in relation to essentialmodifications to be made to interview suites in Garda stations, audio and audio/video recordingequipment and ong>theong> training ong>ofong> membersong>ofong> ong>theong> Garda Síochána in ong>theong> use ong>ofong> such equipment. Inaddition, ong>theong> ong>Committeeong> drew up a preliminary Code ong>ofong> Practice for ong>theong> Garda Síochána.1.3.6 These recommendations were submitted to ong>theong> Minister for Justice, in ong>theong> ong>Committeeong>’sFirst Interim ong>Reportong>, which, with ong>theong> Minister’s approval, was published in March 1994. Followingreceipt ong>ofong> Ministerial approval to implement ong>theong> ong>Reportong>’s recommendations in April 1994, ong>theong>ong>Committeeong> proceeded to establish ong>theong> preliminary pilot trial at Tallaght Garda Station, to befollowed by a full pilot scheme.1.4 Pilot Schemes1.4.1 The preliminary pilot scheme at Tallaght Garda Station, Dublin, commenced on 11 May,1994. The scheme, based on ong>theong> consent ong>ofong> detainees, involved ong>theong> audio or audio/videorecording ong>ofong> Garda interviews with persons detained under section 4 ong>ofong> ong>theong> Criminal Justice Act,1984 and section 30 ong>ofong> ong>theong> Offences against ong>theong> State Act, 1939, i.e., all statutes ong>theong>n extantproviding for ong>theong> detention ong>ofong> persons deemed necessary for ong>theong> proper investigation ong>ofong> ong>ofong>fences.1.4.2 By late 1994, it wasbecoming increasingly evident that detaineeswere, in large part,declining to have ong>theong>ir interviewselectronically recorded, with take-up ratesaveraging only8-9%. This low participation rate meant that statistical data, upon which proper scientificmonitoring ong>ofong> ong>theong> pilot scheme depended, was not available.1.4.3 Accordingly, ong>theong> ong>Steeringong> ong>Committeeong> decided to proceed with a full pilot scheme in a totalong>ofong> four Garda stations, in an effort to increase ong>theong> quantity ong>ofong> available data. The pilot schemewasduly extended to Bridewell Garda Station, Dublin, on 24 March, 1995; to Portlaoise GardaStation on 11 May, 1995; and to Bridewell Garda Station, Cork, on 31 May, 1995.1.5 Experience gained from ong>theong> full Pilot Scheme1.5.1 Statistical returns from ong>theong> pilot scheme Garda stations clearly revealed continuedreluctance on ong>theong> part ong>ofong> detainees to consent to being interviewed using electronic recording.Take-up rates in ong>theong> pilot stations, up to July 1995, were very low (13% on average). As aconsequence ong>theong> ong>Committeeong> considered that Regulations under ong>theong> 1984 Act were necessary toallow for mandatory recording ong>ofong> interviewees.1.6 StatutoryRegulations1.6.1 The ong>Committeeong> sought ong>theong> approval ong>ofong> ong>theong> Minister in June 1995 to introduce regulationsfor mandatory electronic recording under section 27 ong>ofong> ong>theong> Criminal Justice Act, 1984.1.6.2 Following receipt ong>ofong> ong>theong> Minister’sand Government’sapproval to proceed, ong>theong> CriminalJustice Act, 1984 (Electronic Recording ong>ofong> Interviews) Regulations, 1997, came into effect on1 March, 1997.2

1.6.3 The Regulations provided, with specified exceptions, for ong>theong> electronic recording ong>ofong>interviews with persons detained under specific legislation. These were first applied to ong>theong> fourPilot Scheme Garda stations equipped for that purpose.1.6.4 Following ong>theong> introduction ong>ofong> ong>theong> 1997 Regulations, ong>theong> percentage rate ong>ofong> electronicrecording ong>ofong> interviews increased dramatically. By ong>theong> first quarter ong>ofong> 1998, ong>theong> rate ong>ofong> electronicrecording across ong>theong> four pilot scheme Garda stations averaged approximately 75% andsubsequently, increased furong>theong>r to approximately 81%.1.6.5 On ong>theong> basis ong>ofong> ong>theong> experience ong>ofong> ong>theong> pilot scheme, ong>theong> ong>Committeeong> considered that ong>theong>1997 Regulations had proved a sound statutory basis for extending electronic recording ong>ofong>interviews on a nationwide basis.1.7 Recommendations ong>ofong> ong>theong> ong>Steeringong> ong>Committeeong> — Second Interim ong>Reportong> — 19991.7.1 In April 1999, ong>theong> Minister was presented with ong>theong> ong>Committeeong>’s Second Interim ong>Reportong>which contained significant recommendations for a national scheme ong>ofong> audio/video recording tooperate at ong>theong> earliest practicable opportunity and in accordance with ong>theong> provisions ong>ofong> ong>theong>Criminal Justice Act, 1984 (Electronic Recording ong>ofong> Interviews) Regulations, 1997. It recommendedthat ong>theong> scheme apply to all persons detained under section 4 ong>ofong> ong>theong> Criminal Justice Act, 1984;section 30 ong>ofong> ong>theong> Offences against ong>theong> State Act, 1939, as amended; section 2 ong>ofong> ong>theong> CriminalJustice (Drug Trafficking) Act, 1996, or section 2 ong>ofong> that Act as modified by section 4(3).1.7.2 To accommodate recording ong>ofong> interviewsin casesong>ofong> a threat to life, ong>theong> ong>Steeringong>ong>Committeeong> proposed that ong>theong> 1997 Regulations be amended to include a provision allowing forong>theong> interruption and/or discontinuance ong>ofong> an audio/video recording where a member ong>ofong> ong>theong> GardaSíochána not below ong>theong> rank ong>ofong> Chief Superintendent believes, on reasonable grounds, that ong>theong>reis a real and substantial risk to ong>theong> life ong>ofong> any person and that insistence upon ong>theong> electronicrecording ong>ofong> ong>theong> interview givesrise to thisrisk.3

SECTION2Activities since ong>theong> Publicationong>ofong> ong>theong> 2 nd Interim ong>Reportong>2.1 Following ong>theong> recommendation on ong>theong> extension ong>ofong> ong>theong> scheme in ong>theong> 2 nd interim reportong>ofong> ong>theong> ong>Committeeong>, on 14 July, 1999 ong>theong> Government approved (S.26382) ong>theong> introduction ong>ofong> ong>theong>nation-wide scheme.2.2 Progress ong>ofong> ong>theong> Scheme in Garda Stations2.2.1 It is important to state that although ong>theong>re are in excess ong>ofong> 700 Garda stations countrywide,only 167 1 have detention facilitiesand are used to detain and interview people. Therefore, it wasnever ong>theong> intention that all Garda stations would be equipped to carry out Audio/Video recordingong>ofong> interviews. Accordingly, necessary planning work was undertaken by ong>theong> Garda Síochána,including a survey ong>ofong> all Divisions to identify ong>theong> number and location ong>ofong> stations required to give abroad nation-wide coverage with audio/video systems to ensure that any interviews with detainedpersonsare electronically recorded. Standardswere also drawn up regarding ong>theong> layout andsound-proong>ofong>ing ong>ofong> rooms so that recordings ong>ofong> ong>theong> requisite quality would be produced. An E U.based tender process to procure a total ong>ofong> 252 audio/video systems for ong>theong> national scheme wascompleted in April, 2001. Delivery and installation was commenced on 25 July, 2001.2.2.2 Garda technical personnel togeong>theong>r with personnel from ong>theong> Office ong>ofong> Public Works, whong>ofong>itted out ong>theong> rooms to agreed specifications, installed ong>theong> specialist equipment in ong>theong> selectedGarda stations in every Garda Division between July 2001 and late 2003.2.2.3 At thispoint in time, 229 interview roomsin 132 Garda stationsare equipped and are inuse. The ong>Committeeong> is assured that, with ong>theong> putting in place ong>ofong> additional units in a very smallnumber ong>ofong> stations which already have facilities, ong>theong>re are a sufficient number ong>ofong> Garda stations,in all Garda Divisions, to ensure that all interviews as specified in ong>theong> Regulations are recorded.Maps showing ong>theong> nationwide distribution ong>ofong> Garda stations with audio/video facilities and a chartshowing ong>theong> annual rate ong>ofong> rollout is attached at appendix The ong>Committeeong> were concerned to allow ong>theong> scheme adequate time to develop; to giveong>theong> Garda authorities an opportunity to familiarise ong>theong>mselves with ong>theong>ir responsibilities under ong>theong>Regulations; to implement appropriate training programmes, and to have some experience ong>ofong> itsoperation in ong>theong> Courts.2.3 Training ong>ofong> members ong>ofong> ong>theong> Garda Síochána2.3.1 (a) Analysis ong>ofong> requirementsAt ong>theong> outset, a National Training Needs Analysis was carried out by ong>theong> Garda Síochána. Theresults ong>ofong> this analysis, conducted by Regional Coordinators, in accordance with agreed criteria,indicated that eight thousand, six hundred and twenty one members (8,621) required training. Atraining course ong>ofong> two daysduration wasdevised and provided training and education on ong>theong>following matters:—1 In addition, ong>theong>re are Garda Stationsthat have detention facilitiesavailable but are not utilised for a number ong>ofong> reasonsi.e. limitedopening hours, etc.5

• The regulations currently governing ong>theong> Audio/Video recording ong>ofong> suspect interviews• Guide to interviewing and awareness ong>ofong> interviewing suspects with potentialpsychological problems• Relevant case law and international conventions• Use ong>ofong> ong>theong> audio/video equipment• Guidance on current best practice through ong>theong> medium ong>ofong> a number ong>ofong> case studiesmade for ong>theong> purpose ong>ofong> training.The Case Study approach enabled two trainersworking asa team to train twelve membersoneach course.2.3.2 (b) Course DesignThe design ong>ofong> ong>theong> training course is based on experience gained in ong>theong> pilot scheme, ong>theong> adviceand guidance ong>ofong> ong>theong> ong>Steeringong> ong>Committeeong> on Audio/Video recording ong>ofong> Garda interviewing ong>ofong>detained persons, study ong>ofong> current best international training practices, and, in particular, ong>theong>P.E.A.C.E. model ong>ofong> interview training currently being delivered in ong>theong> U.K. which isbased onscientific research and contributions from Police Practitioners, Barristers, Psychologists and oong>theong>racademics.The research focused on ong>theong> development ong>ofong> more effective interviewing skills and best practicein ong>theong> field ong>ofong> Audio/Video recording ong>ofong> suspect interviews. The mnemonic P.E.A.C.E. stands for:—PlanningEngage and explainAccount, Clarification & ChallengeClosureEvaluationThisapproach to interviewing in an audio-video recorded environment provided a good modelfor training, as it gave guidance on ong>theong> structure and best practice in approaches to this type ong>ofong>interviewing. Similar to ong>theong> UK approach, ong>theong> cornerstone ong>ofong> training in Ireland is a practicalapproach, involving case studies and ong>theong> use ong>ofong> ong>theong> installed equipment.2.3.3 (c) Case StudiesThe Case Study approach included ong>theong> use ong>ofong> role-play, where ong>theong> participants took part insimulated interviewswhich were later replayed to ong>theong> participantsasa teaching tool. The Studiesenabled ong>theong> participants to experience ong>theong> use ong>ofong> ong>theong> equipment and to discuss through ong>theong>medium ong>ofong> a debriefing session, ong>theong> interviewing ong>ofong> suspects in an audio video recordedenvironment.This approach enabled, in so far as is possible, a replication ong>ofong> a ‘near real world situation’ andwhich enabled membersto receive guidance on ong>theong> practical application ong>ofong> ong>theong> regulations, ong>theong>interviewing skills, and best practice on approaches to this type ong>ofong> interviewing.2.3.4 (d) Deployment ong>ofong> TrainingThe training programme, designed for ong>theong> roll out ong>ofong> Audio/Video recording ong>ofong> interviews ong>ofong>detained persons, was devolved to each Garda Division for delivery by members nominated as6

Divisional Trainersand wasco-ordinated by Regional Coordinatorswith support from ong>theong> GardaCollege Project Team. The role ong>ofong> ong>theong> Regional Coordinator wasto provide clear linesong>ofong>communicationsbetween ong>theong> project team, ong>theong> Divisional trainersand Garda Management withineach Region/Division. Training was delivered at Divisional level by two members nominated byDivisional Management. The nominated Divisional trainers ong>theong>mselves received a one-weektraining course, to enable ong>theong>m to deliver ong>theong> required training.2.3.5 With regard to relevant Specialist Units, ong>theong>se also appointed a Coordinator, whoperformed ong>theong> same role as Regional Co-ordinators. Training for personnel from ong>theong> variousSpecialist Units was included at ong>theong> selected divisional training centres in ong>theong> Dublin MetropolitanRegion on a pro rata basis.2.3.6 With specific reference to ong>theong> Detective Training Course, all members appointed to aDetective/Crime Investigation Unit undergo a Five (5) week Training course. Throughout ong>theong>Programme, ong>theong> various aspects ong>ofong> Interviewing and ong>theong> conducting ong>ofong> interviews, and taking ong>ofong>statements is addressed.2.3.7 To date, ong>theong> required numbersong>ofong> Gardaí have been trained in ong>theong> use ong>ofong> ong>theong> specialistequipment.2.3.8 Training procedures after nationwide training programmeSubsequent to ong>theong> completion ong>ofong> ong>theong> nationwide training programme as outlined above, ong>theong>training ong>ofong> all Probationer Gardaí in ong>theong> Audio/Video recording ong>ofong> suspects’ interviews isincorporated into ong>theong> Student/Probationer Training programme provided at Templemore TrainingCollege.2.4 Introduction ong>ofong> New Regulations2.4.1 During ong>theong> period 2000 to 2003 ong>theong> ong>Steeringong> ong>Committeeong> met on average twice each yearto consider ong>theong> progress ong>ofong> ong>theong> scheme and issues arising.2.4.2 In particular, ong>theong> ong>Committeeong> discussed in some detail ong>theong> provisions ong>ofong> ong>theong> current (1997)Regulationswith a view to including not only ong>theong> change to ong>theong> Regulationsagreed by ong>theong>Government, i.e. ong>theong> discontinuance ong>ofong> a recording by a Chief Superintendent if ong>theong>re is real andsubstantial risk to ong>theong> life ong>ofong> any person (see paragraph 1.7.2) but also oong>theong>r changes considereddesirable by ong>theong> ong>Committeeong> in ong>theong> light ong>ofong> experience gained with ong>theong> wider use ong>ofong> ong>theong> equipmentcountrywide. The ong>Committeeong> were also concerned to improve ong>theong> format ong>ofong> ong>theong> Regulations.2.4.3 The ong>Committeeong> had ong>theong> benefit ong>ofong> regular contact with, and advice received from, ong>theong>Attorney General’sOffice and indeed membersong>ofong> ong>theong> ong>Committeeong> met with ong>theong> ParliamentaryCounsel to ong>theong> Government on a number ong>ofong> occasions.2.4.4 The ong>Committeeong> considers that, with some amendments, ong>theong> 1997 Regulations are stillappropriate for ong>theong> purposes for which ong>theong>y were made. However, with ong>theong> passage ong>ofong> time, andong>theong> greater use ong>ofong>, and experience gained by Gardaí, ong>ofong> audio/video recording and experiencegained from Court use, etc. ong>theong> ong>Committeeong> considers that certain modifications are appropriateto ong>theong> Regulations.2.4.5 The ong>Committeeong> considers that ong>theong> 1997 Regulations, if amended as now suggested, wouldimprove ong>theong>ir effectiveness and would allow for advances in technology and for ong>theong> use ong>ofong> oong>theong>r7

methodsong>ofong> recording ong>ofong> interviewsin ong>theong> future. Accordingly, ong>theong> ong>Committeeong> hasattached draftRegulations to this ong>Reportong>. It should be noted that although ong>theong>se regulations have beensubstantially cleared by ong>theong> Parliamentary Counsel to ong>theong> Government, a small number ong>ofong> changeshave to be finalised by ong>theong> Parliamentary Counsel. When completed, ong>theong> ong>Committeeong> recommendsthat ong>theong> Minister bring ong>theong>se draft Regulations into force. The ong>Committeeong> is indebted to ong>theong>Parliamentary Counsel to ong>theong> Government, Mr. Paul Linehan, for hisvaluable advicesandassistance in drafting ong>theong> changes to ong>theong> Regulations.2.4.6 Apart from changes ong>ofong> style or format, ong>theong>se Regulations differ in a number ong>ofong> respectsfrom ong>theong> current Regulations. Specifically,(a)(b)(c)(d)(e)(f)(g)(h)(i)The Government decision that an appropriate provision be made for discontinuance ong>ofong>an interview in certain specific situations, or that it not be commenced at all, on ong>theong>direction ong>ofong> a Chief Superintendent hasbeen included at Regulation 11.The Regulationsprovide for a redefinition ong>ofong> ong>theong> word ‘Tape’. The ong>Committeeong> considerthat this redefinition is necessary to allow for a variety ong>ofong> technological possibilitiesgoing forward.The Regulations are drafted, for clarity reasons, to reflect necessary differences betweenong>theong> discontinuance ong>ofong> an interview for good reasons (as provided for in ong>theong> Regulations)and ong>theong> temporary suspension ong>ofong> an interview.The period after which a person who has been interviewed may apply to have ong>theong>working copiesong>ofong> tapesong>ofong> his/her interview destroyed, hasbeen extended to twelvemonths from ong>theong> current six months. Similarly ong>theong> period ong>ofong> extension given to aSuperintendent to retain tapeshasalso been extended to twelve months.Periods for ong>theong> preservation ong>ofong> tapes have been specified, with provisions for extendingong>theong> period in certain circumstances. A distinction has been made between ‘‘mastertapes’’ and ‘‘working copies’’ in this regard. Details ong>ofong> issues considered by ong>theong>ong>Committeeong> are contained in section 3 ong>ofong> this report.A person who has been interviewed or his legal representative or both shall, wherepracticable, be given ong>theong> opportunity to be present when ong>theong> seal ong>ofong> ong>theong> master tape isbroken and to view and listen to ong>theong> tape on a date to be specified by ong>theong> member incharge ong>ofong> ong>theong> station. The ong>Committeeong> consider that this amendment will make ong>theong>provision more manageable for ong>theong> Gardaí at station level without adversely affectingong>theong> interviewee’srights.A refusal to give a copy ong>ofong> a tape ong>ofong> an interview to ong>theong> person interviewed will bea matter for ong>theong> Chief Superintendent and not ong>theong> Superintendent asin ong>theong> currentRegulations.The removal ong>ofong> ong>theong> section in ong>theong> current Regulations dealing with ong>theong> certification bya Garda Superintendent that sufficient members assigned to ong>theong> station are trained inits use. This is considered unnecessary as ong>theong>re are now sufficient operational Gardaítrained in ong>theong> use ong>ofong> ong>theong> equipment.An appropriate transitional provision from ong>theong> existing Regulations has been provided.8

2.5 Review ong>ofong> National System2.5.1 In addition to ong>theong> above matters, ong>theong> ong>Committeeong> addressed oong>theong>r salient issues and matterswhich are brought to ong>theong> attention ong>ofong> ong>theong> Minister. In reviewing ong>theong> national scheme, ong>theong>ong>Committeeong> had regard to such matters as ong>theong> extent ong>ofong> use ong>ofong> ong>theong> system in accordance with ong>theong>Scheme; ong>theong> occasionswhen recordingsong>ofong> interviewsdid not take place; ong>theong> instancesong>ofong>accusations by those being interviewed ong>ofong> coercion or impropriety by ong>theong> interviewing Gardaí.2.5.2 From analysis ong>ofong> Garda statistics for ong>theong> period January to November, 2003, ong>theong> ong>Committeeong>are pleased to note ong>theong> very high rate ong>ofong> audio/video recording ong>ofong> interviews. During ong>theong> perioda total ong>ofong> 16,126 interviewswere conducted asprovided for in ong>theong> regulations. Of ong>theong>se 15,032were recorded representing 96% ong>ofong> ong>theong> total. Thisisa marked increase on earlier reportsfromong>theong> Pilot scheme. The ong>Committeeong> examined ong>theong> reasons why ong>theong> balance ong>ofong> interviews (4%) werenot recorded. Specifically, ong>theong>re are two main reasonsasfollows:—(i)(ii)equipment already in use/room not available;objectionsby interviewees.2.5.3 With regard to ‘equipment already in use / room not available’, this accounted for 1.5%ong>ofong> ong>theong> total. Arising from an analysis ong>ofong> ong>theong> statistics on usage, ong>theong> Gardaí have identified a smallnumber ong>ofong> locations (stations) for which additional equipment is required, in addition to ong>theong>equipment already provided at those locations. The Garda Síochána will be addressing this matter.2.5.4 Recently ong>theong> ong>Committeeong> have become aware that ong>theong>re may be a need to review ong>theong>technical quality ong>ofong> recordings. The ong>Committeeong> isaware ong>ofong> two instancesin ong>theong> Courtswhere ong>theong>quality ong>ofong> recordingswascalled into question. The ong>Committeeong> recommendsthat ong>theong> GardaSíochána should conduct a quality review ong>ofong> all recording suites to ensure that recordings are ong>ofong>ong>theong> requisite standard. The review should be carried out during busy periods to simulate normalactivity and extraneous noise around ong>theong> interview suite. The ong>Committeeong> considers that this reviewshould take place as soon as possible.2.5.5 With regard to ‘objectionsby interviewees’, ong>theong> Gardaí report that ong>theong>y are happy withong>theong> high compliance rate in respect ong>ofong> videoing interviewsand regard ong>theong> facility asa safeguardfor both ong>theong> Gardaí and ong>theong> interviewee alike. While it is reasonable to expect that some detainedpersons will refuse to be interviewed on tape, it is encouraging that only 1.8% ong>ofong> all interviewswere not interviewed on tape because ong>theong> interviewee objected to such recording.2.5.6 The ong>Committeeong> considers that, wherever possible, such objections by interviewees shouldbe recorded on tape.2.5.7 Considering ong>theong> nationwide coverage ong>ofong> interview rooms fitted out with ong>theong> equipment,ong>theong> fact that almost all operational Gardaí have been trained in ong>theong> use ong>ofong> ong>theong> equipment and thatong>theong> scheme has now been operating successfully for a significant period ong>ofong> time, ong>theong> ong>Committeeong>considers that all interviews with persons detained under ong>theong> statutory provisions ong>ofong> ong>theong> CriminalJustice Act, 1984 and who are interviewed pursuant to ong>theong> provisions ong>ofong> ong>theong> (Electronic Recordingong>ofong> Interviews) Regulations, 1997 should be recorded on Audio/Video equipment. The onlyexceptionsto thisshould be ong>theong> exceptionsasprovided for in ong>theong> Regulations.2.5.8 The advent ong>ofong> Audio Video recording has been ong>theong> subject ong>ofong> some comment from ong>theong>Judiciary. In a recent case, Mr. Justice Hardiman, giving ong>theong> judgement ong>ofong> ong>theong> court, (Director ong>ofong>9

Public Prosecutions -v- Martin Connolly, 2003 2 I.R.167 CCA) commented that ong>theong> time cannotbe remote when a submission will be made that absenting extraordinary circumstances it isunacceptable to tender evidence which hasnot been recorded.It is ong>theong> ong>Committeeong>’s view that because ong>ofong> ong>theong> nation-wide scheme now in operation, this shouldobviate any suggestion that it is necessary to bring a detained person to a station oong>theong>r than thosewhich have been fitted out with ong>theong> necessary facilities to audio/video interviews. Therefore, ong>theong>Garda Síochána must make every effort to ensure that all interviews are recorded on Audio/Videoand that all available optionsare explored before any ong>ofong> ong>theong> exceptions, asprovided for in ong>theong>regulations, are invoked.2.6 Production ong>ofong> Tapes in Court2.6.1 Initially, ong>theong> ong>Committeeong> considered that ong>theong>re would be relatively few occasions when itwould be necessary to produce audio/video recordings in court. However, in recent times it hascome to ong>theong> notice ong>ofong> ong>theong> ong>Committeeong> that ong>theong>re have been caseswhere ong>theong> tapeswere not justrequired to be produced in court but were played aswell — ong>theong> purpose being to compare ong>theong>written notesong>ofong> an interview with ong>theong> actual recording to test wheong>theong>r ong>theong>re isa conflict betweenone and ong>theong> oong>theong>r.2.6.2 It is anticipated that oong>theong>r issues could arise during ong>theong> trial process as to ong>theong> manner inwhich an interview was conducted, e.g. wheong>theong>r it was oppressive, or suggestive ong>ofong> threats orinducements— factorswhich may not alwaysbe apparent from a written note.2.6.3 On ong>theong> present figures available to ong>theong> ong>Committeeong>, ong>theong> production ong>ofong> tapes in court hasbeen ong>theong> exception raong>theong>r than ong>theong> rule. Indeed, asfar asong>theong> ong>Committeeong> isaware, up to June2004 ong>theong>re have only been 44 occasionswhere thishasoccurred. Complete figuresfor ong>theong>number ong>ofong> timesthat tapeshave actually been played in court during ong>theong> trial processare not tohand at present. However, ong>theong> ong>Committeeong> are aware ong>ofong> at least 2 cases where ong>theong> tapes ong>ofong>interviews were played in court and in one ong>ofong> those cases, ong>theong> court was told that it would take14 hoursreplaying ong>theong> tapes— in reality 3 daysong>ofong> court time.2.6.4 In ong>theong> course ong>ofong> its early discussions for ong>theong> preparation ong>ofong> its 1st ong>Reportong>, ong>theong> ong>Committeeong>identified that one ong>ofong> ong>theong> advantagesong>ofong> ong>theong> audio visual recording ong>ofong> interviewswith detainedpersonsisthat it would lead to a reduction in ong>theong> number ong>ofong> voir-dires, or trialswithin trials, thussaving court time and expense.2.6.5 In view ong>ofong> this, ong>theong> ong>Committeeong> considers that ong>theong> extent to which ong>theong> production andplaying ong>ofong> tapesin court may become part ong>ofong> ong>theong> trial processwill need to be carefully monitoredin future. If necessary, appropriate procedures could be considered so that ong>theong> issue could bedetermined, to some extent, at a pre-trial hearing. The treatment ong>ofong> contemporaneous notes ong>ofong>interviews, which may also have a bearing on this issue, is discussed below.2.6.6 A report in May, 2003, from ong>theong> Working Group on ong>theong> Criminal Jurisdiction ong>ofong> ong>theong> Courts,chaired by Mr. Justice Fennelly, made recommendations, on, inter-alia, pre-trial procedures onindictment. To take mattersforward, a committee chaired by Mr. Justice Paul Carney, hasbeenestablished. Procedures for ong>theong> playing ong>ofong> tapes at pre-trial stage may be an issue that could befruitfully examined by that ong>Committeeong>.10

2.7 Use ong>ofong> contemporaneous Notes2.7.1 The ong>Committeeong> re-considered this issue which was first considered in ong>theong> 1 st ong>Reportong> ong>ofong> ong>theong>ong>Committeeong> in 1994. The practice asintroduced at that time, and continuing to ong>theong> present, wasthat ong>theong> Gardaí carrying out ong>theong> interview would take contemporaneousnotesin addition to ong>theong>Audio / Video recording. Thisisin line with ong>theong> JudgesRulesand Custody Regulationsin relationto this matter. In ong>theong> light ong>ofong> ong>theong> passage ong>ofong> time and experience gained, ong>theong> ong>Committeeong> lookedagain at ong>theong> issue. The main arguments against ong>theong> continued taking ong>ofong> such notes relate to ong>theong>time taken, and that ong>theong> taking ong>ofong> such notes may disrupt ong>theong> flow ong>ofong> ong>theong> interview.2.7.2 While it isclear that ong>theong> Audio Video recording isong>theong> best evidence ong>ofong> what happensatong>theong> interview and accordingly, ong>theong>re may be a case to be made that ong>theong> full written note ong>ofong>interviews is superfluous, neverong>theong>less, ong>theong>re are a number ong>ofong> arguments in favour ong>ofong> ong>theong> retentionong>ofong> ong>theong> status quo.2.7.3 In ong>theong> event that ong>theong> full written notesong>ofong> interviewswere to be dispensed with, ong>theong>n itcould transpire that defence and prosecution teams would seek a transcript ong>ofong> ong>theong> recordedinterview. This could give rise to significant cost implications.2.7.4 In considering cost, regard has to be given not just to ong>theong> actual time taken by ong>theong> persontyping ong>theong> transcript but also to checking and certification ong>ofong> ong>theong> transcript by ong>theong> Garda Síochána.Also, ong>theong> timeliness ong>ofong> transcripts will impact on ong>theong> resources required. For example, it isconsidered that ong>theong> transcript would be required to be submitted to ong>theong> Director ong>ofong> PublicProsecutions / State Prosecution Solicitor with ong>theong> prosecution file. This would mean thattranscriptswould have to be prepared very quickly after ong>theong> interview. Should thisnot happen,staff in ong>theong>se ong>ofong>fices would be required to view ong>theong> tapes. The ong>Committeeong> consider that this wouldbe totally unsatisfactory and virtually unworkable as it would be extremely time consuming withseveral viewings necessary where files are reviewed or submitted for approval ong>ofong> a particularcourse ong>ofong> action.2.7.5 The time taken by a typist to transcribe a video tape is estimated at a factor ong>ofong> 5 times ong>theong>interview duration. Audio tape isestimated to take 3 timesong>theong> interview duration and one estimateong>ofong> video tape isthat transcription could take up to 10 timesong>theong> interview duration. However, thisisregarded asan upper figure and accordingly a factor ong>ofong> 5 isconsidered more accurate forestimate purposes. Because ong>ofong> ong>theong> need for speedy transcription, for specialised equipment andfor economies ong>ofong> scale, it is considered that ong>theong> process ong>ofong> transcription would require to becentralised.2.7.6 Assuming it will take 5 hours work to transcribe 1 Hour ong>ofong> interview, it is estimated thatbased on ong>theong> number ong>ofong> tapes created per annum, in ong>theong> order ong>ofong> 30-50 staff would be requiredin ong>theong> direct task ong>ofong> transcription. When ong>theong> cost ong>ofong> supervision, equipment and accommodationisfactored into ong>theong> equation aswell asallowing for Garda time to check ong>theong> output, it isestimatedthat transcription would cost over \5m per annum. This is assuming one centralised operation.The costs would rise significantly if ong>theong> tasks were to be carried out at Garda Divisional level. Thecosts also assume an even throughput and do not take account ong>ofong> peaks in demand. Such peakswould have to be catered for by overtime or additional staff as ong>theong> transcriptions are requiredwithin a short period ong>ofong> time by ong>theong> Gardaí to prepare ong>theong> Book ong>ofong> Evidence.2.7.7 The ong>Committeeong> would be concerned that if ong>theong>re were to be a change to ong>theong> JudgesRulesdispensing with full contemporaneous notes ong>ofong> interviews, this could have an impact on ong>theong>11

conduct ong>ofong> criminal trials. If in ong>theong> future such changes were to be introduced, ong>theong>ir effect oncriminal trialscould be obviated by such mattersbeing dealt with aspre-trial mattersby ong>theong> trialJudge. The use ong>ofong> such pre-trial procedures would provide for viewing ong>ofong> recordings by defendantsor ong>theong>ir legal representatives before commencement ong>ofong> ong>theong> criminal trial.2.7.8 With ong>theong> passage ong>ofong> time ong>theong> legislature may look at ong>theong> question ong>ofong> modification ong>ofong> ong>theong>JudgesRulesto continue with contemporaneousnotes, in ong>theong> light ong>ofong> furong>theong>r experience gainedwith audio/video recording ong>ofong> suspect interviews. Due regard will also have to be given to ong>theong>Custody Regulationsif changesare proposed. The ong>Committeeong> isong>ofong> ong>theong> view, however, thatcontemporaneous notes should continue to be used for ong>theong> present.2.8 Advances in Recording Technology2.8.1 The ong>Committeeong> isconsciousong>ofong> ong>theong> fact that recording technology ischanging at a rapidpace, particularly in ong>theong> case ong>ofong> digital technology as applied to audio and video transmission andrecording.2.8.2 The ong>Committeeong> would wish to acknowledge ong>theong> very valuable advice it received from itsTechnical Advisor, Prong>ofong>essor James G. Lacy, in this regard, particularly to ong>theong> use ong>ofong> DVDtechnology in ong>theong> context ong>ofong> audio video recording ong>ofong> suspect interviews.2.8.3 The ong>Committeeong> wasaware ong>ofong> thistechnological change at ong>theong> time ong>ofong> itsSecond Interimong>Reportong> in 1999. However, having considered ong>theong> matter carefully at that time, it recommendedan adherence to ong>theong> VHS system ong>ofong> recording on tape ong>ofong> interviews in Garda stations. In thisregard, ong>theong> ong>Committeeong> was ong>ofong> ong>theong> view that ong>theong> VHS recording system was a mature technologyand had been shown to be reliable during ong>theong> previousyearsong>ofong> Pilot trialsand that ong>theong> technologymet ong>theong> specific requirements set out in ong>theong> Regulations.2.8.4 The ong>Committeeong> also had regard to ong>theong> advice ong>ofong> its Technical Advisor that ong>theong> medium ong>ofong>DVD wasnot mature enough at that time. The ong>Committeeong> hasagain considered thismatter andsome issues which are advised by its Technical Advisor, which need to be considered before anychange to DVD iscontemplated. Principal among ong>theong>se isong>theong> question ong>ofong> wheong>theong>r ong>theong> method bywhich digital images are recorded and stored represents ong>theong> best evidence available. In addition,significant hardware and song>ofong>tware development would be required to produce a DVD systemto meet ong>theong> operational requirements. Details ong>ofong> ong>theong> specific issues involved are outlined atAppendix Accordingly, ong>theong> ong>Committeeong>, while providing for ong>theong> possibility in ong>theong> proposed draftRegulations ong>ofong> using DVD technology in ong>theong> future, considers that ong>theong> existing VHS technologybe continued. Any future decision for replacement ong>ofong> ong>theong> technology will need to take intoaccount ong>theong> issues raised above as well as issues such as ong>theong> availability ong>ofong> parts and supportong>ofong> ong>theong> existing systems. The ong>Committeeong> considers that ong>theong> matter be kept under review goingforward.2.8.6 The ong>Committeeong> hasalso made recommendationsregarding ong>theong> need to review ong>theong> qualityong>ofong> existing recordings to ensure acceptable standards are maintained. (paragraph 2.5.4 refers.)12

SECTION3Policy for Preservation andDestruction ong>ofong> Tapes3.1 The ong>Committeeong> has considered, in ong>theong> light ong>ofong> experience gained to date with ong>theong> scheme,a number ong>ofong> issues surrounding ong>theong> preservation and destruction ong>ofong> tapes. Specifically, on ong>theong>destruction ong>ofong> tapes ong>theong> ong>Committeeong> considered:— that material on tape may be required in future eiong>theong>r by ong>theong> person on tape or by thirdpartieswho may be directly affected by ong>theong> content ong>ofong> ong>theong> tapes;— ong>theong> rightsong>ofong> personsnot to have material relating to ong>theong>m stored on tape indefinitely;— issues with ong>theong> longer term storage ong>ofong> tapes and ong>theong> expected lifespan ong>ofong> ong>theong> tapesong>theong>mselves.3.1.1 Existing legislation on destruction ong>ofong> evidenceExisting legislation relating to ong>theong> destruction ong>ofong> evidence is contained in Section 8 ong>ofong> ong>theong> CriminalJustice Act, 1984 and in Section 4 ong>ofong> ong>theong> Criminal Justice (Forensic Evidence) Act, 1990. Section8 ong>ofong> ong>theong> 1984 Act states that ong>theong> destruction ong>ofong> evidence — photographs, fingerprints, palm prints— must be carried out within a six month period where proceedings for an ong>ofong>fence are notinstituted against ong>theong> person and ong>theong> failure to institute such proceedings within that period is notdue to ong>theong> fact that he has absconded or cannot be found. Section 8 also provides for ong>theong>destruction where proceedings have been so instituted and ong>theong> person is acquitted or dischargedor ong>theong> proceedingsare discontinued.Section 4 ong>ofong> ong>theong> Criminal Justice (Forensic Evidence) Act, 1990 also makes similar provisionsregarding ong>theong> destruction ong>ofong> forensic evidence.Both Acts also make provision for application by or on behalf ong>ofong> ong>theong> Director ong>ofong> PublicProsecutionsto ong>theong> Courtsfor retention ong>ofong> ong>theong> evidence, provided it can be shown that ong>theong>re isgood reason why records and samples should not be destroyed. This option is also available toong>theong> person from whom ong>theong> sample was taken in respect ong>ofong> forensic evidence under ong>theong> 1990 Act.3.1.2 Preservation and Retention ong>ofong> evidenceThe Criminal Procedure Act, 1993 providesfor ong>theong> review by ong>theong> Court ong>ofong> Criminal Appeal ong>ofong>alleged miscarriages ong>ofong> justice or excessive sentence. The Act refers to new or newly-discoveredfactsasa basisong>ofong> appeal. The ong>Committeeong> considersthat ong>theong>re could be circumstanceswheresuch facts may be contained on ong>theong> tape ong>ofong> ong>theong> interview and as such, preservation and retentionneedsto be considered in thislight.3.1.3 The ong>Committeeong> also investigated relevant case law regarding ong>theong> obligation ong>ofong> ong>theong>Prosecution to preserve and disclose evidence to ong>theong> Defence. A summary ong>ofong> ong>theong> relevant caselaw since ong>theong> current Regulationscame into force isset-out in appendix In reading ong>theong> relevant case law, ong>theong>re can be no doubt that ong>theong> video tapes ong>ofong> interviewsong>ofong> detainees may constitute some evidence in relation to ong>theong> specific crime being investigated.13

Therefore, it isclear that such tapesshould be retained until all mattersin connection with ong>theong>investigation and proceedings arising ong>theong>refrom have been completed.3.1.5 However, a tape ong>ofong> an interview ong>ofong> itself is unlike physical or forensic evidence or a copyong>ofong> CCTV footage ong>ofong> a crime being committed in that it is not necessarily evidence ong>ofong> ong>theong> crimeitself. An exculpatory statement during an interview is not ong>ofong> itself evidence ong>ofong> a crime. That said,tapescontinue to be, and will alwaysbe, ong>ofong> evidential value in ong>theong> criminal process.3.1.6 The ong>Committeeong> considers that it would not be possible to predict with ong>theong> requiredcertainty at ong>theong> conclusion ong>ofong> a case wheong>theong>r ong>theong> contents ong>ofong> ong>theong> tapes ong>ofong> ong>theong> interview could beong>ofong> evidential value eiong>theong>r to ong>theong> interviewee or to a third party at some future time. The contentsong>ofong> ong>theong> interview could be ong>ofong> evidential value eiong>theong>r in bringing furong>theong>r prosecutions or in anapplication for a retrial. In drafting ong>theong> proposed regulations, ong>theong> ong>Committeeong> are, ong>theong>refore,concerned to allow for thispotential aswell asong>theong> need to preserve evidence for re-trialsunderong>theong> Criminal Procedure Act 1993.3.2 Rights ong>ofong> individuals to have tapes destroyed3.2.1 The ong>Committeeong> isconcerned that circumstancesmay arise in ong>theong> future where a recordingong>ofong> an individual being interviewed for, say, a serious ong>ofong>fence, would be stored indefinitely andpotentially might get into ong>theong> public domain many yearslater. Thiscould be regarded asa graveinjustice to ong>theong> individual concerned.3.2.2 Oong>theong>r issues could arise if one individual implicates anoong>theong>r and events later show thatthat individual wasnot involved in a crime, yet ong>theong> tape implicating him ispermanently stored.These issues not only relate to ong>theong> rights ong>ofong> ong>theong> individual concerned but also would be ong>ofong> concernif ong>theong>y were to be seen as a disincentive by interviewees to participate in a taped interview whendetained.3.2.3 The ong>Committeeong> recognise ong>theong> need to safeguard ong>theong> rights ong>ofong> ong>theong> interviewed persons andoong>theong>rs who may be implicated on tape. However, it also recognises ong>theong> possibility ong>ofong> conflictbetween ong>theong> proposed regulations and oong>theong>r legislation such as Data Protection, Freedom ong>ofong>Information or National Archives etc.. The ong>Committeeong> suggests that this is an issue that may needto be examined by ong>theong> legislature going forward.3.3 Storage ong>ofong> Tapes3.3.1 One ong>ofong> ong>theong> factorsto be considered isong>theong> volume ong>ofong> tapeswhich will be generated overtime and consequently ong>theong> logistical factors arising such as ong>theong> appropriate storage requirementsaswell asong>theong> need for regular re-winding ong>ofong> individual tapesin storage.3.3.2 Undoubtedly, ong>theong> three deck system ong>ofong> audio/video recording ong>ofong> suspect interviewscurrently in use nationwide has had ong>theong> effect ong>ofong> generating a large volume ong>ofong> tapes. In addition,ong>theong> oong>theong>r two factorswhich determine ong>theong> number ong>ofong> tapesgenerated are ong>theong> number ong>ofong>interviewscarried out in stationseach year, and ong>theong> average number ong>ofong> tapesused per interview.3.3.3 Experience suggests that with toilet breaks, tea breaks or oong>theong>r interruptions it can meanthat on average 12 tapes are used in ong>theong> course ong>ofong> a detention.14

Data supplied by ong>theong> Gardaí indicate that ong>theong> total number ong>ofong> tapesused in 2001 was7,307. In2002 thisfigure had grown to 51,577 and in 2003 ong>theong> figure had reached 180,384.3.3.4 Currently, storage ong>ofong> both Working Copies and Master tapes takes place in Garda stationswhere ong>theong> interviewsare conducted, and that isong>ofong> concern to Gardaí in ong>theong> context ong>ofong> availablespace in busy Garda stations, and ong>theong> requirements ong>ofong> ensuring that ong>theong> chain ong>ofong> evidence is notbroken or compromised in a way that could at a later stage prove critical to an investigation.3.3.5 With this in mind, a Tape Storage Repository in which all master tapes will be stored andwhich ong>theong> ong>Committeeong> understands is being built to ong>theong> highest specifications, will greatly improvematters, not only in individual Garda stations but also, and more importantly, from ong>theong> point ong>ofong>view ong>ofong> safe storage ong>ofong> tapes thus maintaining an unbroken chain ong>ofong> evidence. The ong>Committeeong>understands that this purpose built Repository is at present being fitted out. Working copies willcontinue to be retained locally in stations.3.3.6 Anoong>theong>r consideration in ong>theong> long term storage ong>ofong> tapes is ong>theong> need to have tapes rewoundon a regular basis. If thisisnot carried out ong>theong> tapeswill not be useable in ong>theong> longer term.Although specific tape re-winding equipment has been acquired by ong>theong> Garda Síochána for thispurpose, it is a time consuming task and would not be feasible to perform on working copies ateach Garda station.3.4 Recommendations for preservation / destruction ong>ofong> Tapes3.4.1 Regulations for ong>theong> Audio Video interviewing ong>ofong> suspects are made under Section 27 ong>ofong> ong>theong>Criminal Justice Act, 1984. Specifically, sub-section 3 provides that ong>theong> regulations shall includeprovision for ong>theong> preservation, for such time and in such manner as may be prescribed ong>theong>rein, ong>ofong>every recording made in accordance with ong>theong> regulations. In setting down provision for preservationong>ofong> tapes for a specific period, it is implicit that ong>theong>y may well be destroyed after that period.Accordingly, legal provision needs to be made to lay down procedures for ong>theong> destruction ong>ofong> tapes.3.4.2 The ong>Committeeong> notes that ong>theong> destruction provisions referred to in paragraph 3.1.1 above(relating to fingerprints, photographs etc.) are provided for in primary legislation. However, this isa matter being considered by ong>theong> Parliamentary Counsel in ong>theong> context ong>ofong> finalising ong>theong> draftregulations.3.4.3 Considering ong>theong> expected difficulties with ong>theong> long term storage ong>ofong> working copies inparticular, ong>theong> ong>Committeeong> considers that a distinction can be drawn between working copies andmaster tapes. The necessity to retain working copies is significantly reduced after a case iscompleted. It is also ong>theong> case that provided ong>theong> master tape is retained, it can be viewed asrequired in accordance with ong>theong> regulations in place. Accordingly, separate provisions forpreservation and destruction ong>ofong> working copies ong>ofong> tapes and master tapes are included in ong>theong>draft regulations.3.5 Treatment ong>ofong> Working Copies3.5.1 In respect ong>ofong> working copies, as well as making provision for ong>theong> interviewee or his legalrepresentative to apply for ong>theong> destruction ong>ofong> tapes, provision in ong>theong> regulations is also made forong>theong> destruction ong>ofong> tapes by ong>theong> Gardaí after a period ong>ofong> 2 yearsfrom specified eventssuch ascompletion or discontinuance ong>ofong> legal proceedings. This is in recognition ong>ofong> ong>theong> longer termstorage issues that will arise with ong>theong> local storage ong>ofong> ong>theong>se copies.15

3.5.2 However, ong>theong> Garda Superintendent may authorise ong>theong> preservation ong>ofong> ong>theong> working copiesong>ofong> ong>theong> tapes for a furong>theong>r period ong>ofong> two years on being satisfied that ong>theong>y may be required for ong>theong>purposesong>ofong> proceedingswith an ong>ofong>fence.3.6 Treatment ong>ofong> Master Tapes3.6.1 Having explored all ong>ofong> ong>theong> above issues, ong>theong> ong>Committeeong> considers that Master Tapes shouldbe retained for a significant period ong>ofong> time after ong>theong> completion ong>ofong> proceedings. Accordingly, ong>theong>draft regulationshave been drafted on ong>theong> following lines.3.6.2 In cases where proceedings for an ong>ofong>fence are not instituted against ong>theong> person or ong>theong>failure to institute such proceedings is not due to ong>theong> fact that he has absconded or cannot befound, ong>theong> ong>Committeeong> recommendsthat master tapesbe retained for a period ong>ofong> 25 years. Oneong>ofong> ong>theong> reasons for this suggested lengthy period ong>ofong> tape preservation, is that future advances intechnology such as DNA prong>ofong>iling etc., may allow cases which cannot be proceeded with now,to be prosecuted in ong>theong> future.3.6.3 Where convictions have been obtained, ong>theong> ong>Committeeong> considers that such master tapesbe retained for aslong asispracticable. In thisregard, consideration will have to be given to ong>theong>longer term storage requirementsaswell asong>theong> practicalitiesong>ofong> regular re-winding ong>ofong> tapestokeep ong>theong>m in working order. While it isnot known how long ong>theong> physical video tape can beretained and still be in useable condition, a period ong>ofong> 40 years has been suggested for preservation.In thisregard, while ong>theong> ong>Committeeong> doesnot recommend a move to DVD technology at thistime,future technological advances may well mean that ong>theong> storage problem may not create ong>theong> samedifficulties into ong>theong> future, particularly with ong>theong> physical storage space required and ong>theong> durabilityong>ofong> ong>theong> storage media. Also, we should not rule out that it may be possible to convert existingvideo to a new format thusobviating ong>theong> storage and longevity problemswith video tape. (Achange to ong>theong> Act / regulations will be required before such a course ong>ofong> action is contemplated.)3.6.4 The seal ong>ofong> master tapes should only be opened in specific circumstances as provided forin Article 15 ong>ofong> ong>theong> draft regulations. Such circumstances should only arise by and large after ong>theong>working copies have been destroyed. These circumstances include, a direction ong>ofong> ong>theong> Courts, arequest from ong>theong> Garda Síochána ComplaintsBoard or from a Chief Superintendent aspart ong>ofong>investigation ong>ofong> disciplinary matters against a member ong>ofong> ong>theong> Force.3.6.5 To give effect to Article 15 ong>ofong> ong>theong> draft regulations, ong>theong> ong>Committeeong> recommends thatprovision be made in law for a judge ong>ofong> ong>theong> District Court, upon application, from eiong>theong>r— a Chief Superintendent;— ong>theong> interviewee (or his/her legal representative); or— a person who is charged with an ong>ofong>fence (or ong>theong>ir legal representative)to direct that ong>theong> seal ong>ofong> ong>theong> master tape be broken where ong>theong> court is satisfied that it may berequired for ong>theong> purposes ong>ofong> oong>theong>r proceedings.3.6.6 In arriving at ong>theong>se conclusions, ong>theong> ong>Committeeong> is concerned to balance ong>theong> need to havetapes available in ong>theong> future should ong>theong>y be required for furong>theong>r legal proceedings, and ong>theong> rights ong>ofong>intervieweesby providing that such tapescan only be viewed in particular circumstancesor onapplication to ong>theong> Courts. The ong>Committeeong> consider that ong>theong> draft regulations meet ong>theong>se requirementswhile taking on board, as far as possible, ong>theong> longer term issues with storage ong>ofong> master tapes.16

SECTION4Conclusions andRecommendations4.1 Overall, ong>theong> ong>Committeeong> is satisfied with ong>theong> operation ong>ofong> ong>theong> scheme to date. Theong>Committeeong> ispleased to note ong>theong> high percentage ong>ofong> interviewswhich are now recorded underong>theong> Regulations using ong>theong> Audio/Video recording systems. (paragraph 2.5.2)4.2 There are a small number ong>ofong> stations where additional room(s) will have to be fitted out toensure sufficient availability ong>ofong> rooms for interviews. The Garda Síochána must ensure thatsufficient interview rooms are available. (paragraph 2.5.3)4.3 The ong>Committeeong> isstrongly ong>ofong> ong>theong> view that all interviewsasspecified in ong>theong> Regulationsberecorded using ong>theong> system with ong>theong> specific exceptions provided for in ong>theong>se Regulations(paragraph 2.5.7). The ong>Committeeong> consider that because ong>theong> scheme is now in operation on anation-wide basis, it should obviate any suggestion that it is necessary to bring a detainee to astation oong>theong>r than those which have been fitted out with ong>theong> necessary facilities to audio/videointerviews. Therefore, ong>theong> Garda Síochána must make every effort to ensure that all interviews arerecorded on Audio/Video and that all available optionsare explored before any ong>ofong> ong>theong> exceptions,asprovided for in ong>theong> regulations, are invoked. (paragraph 2.5.8)4.4 In order to ensure that all recordings are made to ong>theong> required standard, ong>theong> Garda Síochánashould carry out a review ong>ofong> all recording suites and make improvements, where necessary.(paragraph 2.5.4)4.5 The ong>Committeeong> is concerned that, wherever possible, objections by interviewees to havingong>theong>ir interviewsrecorded should be recorded on tape. (paragraph 2.5.6)4.6 The ong>Committeeong> has considered ong>theong> existing Regulations covering ong>theong> scheme andrecommends a number ong>ofong> changes dealing with a range ong>ofong> issues (paragraph 2.4.6). These include:— provision for ong>theong> discontinuance ong>ofong> ong>theong> interview or for it not to commence at all inspecific circumstances on ong>theong> direction ong>ofong> a Chief Superintendent;— rules on access, preservation and destruction ong>ofong> tapes;— changesto definitionsto cover advancesin technology. Also, ong>theong> draft Regulationsaremodified to take account ong>ofong> ong>theong> principal that all interviewsbe recorded except for thoseprovided for in ong>theong> Regulations.— The Regulations are drafted, for clarity reasons, to reflect necessary differences betweenong>theong> discontinuance ong>ofong> an interview for good reasons (as provided for in ong>theong> Regulations)and ong>theong> temporary suspension ong>ofong> an interview.4.7 The ong>Committeeong> has set-out a policy for ong>theong> preservation and destruction ong>ofong> tapes in Section3 ong>ofong> thisreport, including:— making a distinction in ong>theong> treatment ong>ofong> Working copies and Master tapes;17

— Setting down a policy for ong>theong> opening, ong>theong> preservation and ong>theong> destruction ong>ofong> mastertapestaking into account, inter-alia, ong>theong> rightsong>ofong> interviewees, ong>theong> need to preserve andretain evidence and ong>theong> practical and logistical issues connected with ong>theong> long-termstorage ong>ofong> tapes;— Setting down a preservation period and procedures for ong>theong> destruction ong>ofong> working copies.The conclusions reached by ong>theong> ong>Committeeong> have been incorporated into ong>theong> draft Regulationswhere possible.4.9 The ong>Committeeong> hasconsidered ong>theong> extent ong>ofong> ong>theong> production and playing ong>ofong> tapesin court(paragraph 2.6). While ong>theong> number is currently very small, ong>theong> ong>Committeeong> considers that this is amatter which requires close monitoring going forward. This is ong>theong> sort ong>ofong> issue that could perhapsbe considered by ong>theong> committee set up to examine pre-trial procedures arising from ong>theong> reportfrom ong>theong> Working Group on Criminal Jurisdiction ong>ofong> ong>theong> Courts (Fennelly ong>Reportong>). (paragraph 2.6.5— 2.6.6)4.10 The ong>Committeeong> recommendsong>theong> continuance, for ong>theong> present, ong>ofong> ong>theong> requirement ong>ofong> takingcontemporaneouswritten notesong>ofong> interviews. (paragraph 2.7.8)4.11 The ong>Committeeong>, which hashad ong>theong> advice ong>ofong> itsTechnical Advisor available to it, consideredong>theong> use ong>ofong> DVD technology and concluded that ong>theong>re are certain issues to be addressed before achange from ong>theong> existing VHS technology is contemplated. (paragraph 2.8.5).4.12 General ConclusionThe ong>Committeeong> considersong>theong>re isa need to keep ong>theong> scheme under review and to monitorprogressgoing forward. In thisregard, ong>theong> ong>Committeeong> will continue to keep under review ong>theong>progress ong>ofong> ong>theong> scheme to audio/video record interviews with detained persons in Garda stationsand meet as required to discuss any developments arising including ong>theong> operation ong>ofong> ong>theong> schemein ong>theong> Courts. The ong>Committeeong> will report again on any concerns/findings to ong>theong> Minister.Accordingly, ong>theong> ong>Committeeong> submits this latest report for ong>theong> Ministers information and dueconsideration.18


APPENDIX1Terms ong>ofong> ReferenceIn March 1993, following ong>theong> request and receipt ong>ofong> nominations for ong>theong> ong>Steeringong> ong>Committeeong>, ong>theong>ong>theong>n Minister for Justice, Ms. Máire Geoghegan-Quinn, T.D., appointed memberswith termsong>ofong>reference asfollows:(i)(ii)To make recommendations to ong>theong> Minister for Justice, on ong>theong> following matters, for ong>theong>purpose ong>ofong> establishing field trials:— location ong>ofong> field trials;— essential modifications to be made to Garda interview rooms;— ong>theong> Garda training required;— ong>theong> type ong>ofong> equipment to be used (subject to ong>theong> approval ong>ofong> ong>theong> Departmentong>ofong> Justice and Finance and having regard to ong>theong> appropriate technical advice);— wheong>theong>r any amendments to ong>theong> Judges’ Rules may be necessary because ong>ofong>ong>theong> change to electronic recording ong>ofong> Garda questioning;— ong>theong> special arrangements (adverted to by ong>theong> Martin ong>Committeeong>) which will,on ong>theong> basis ong>ofong> ong>theong> advice ong>ofong> ong>theong> Garda Commissioner, need to be applied incases where questioning by ong>theong> Gardaí relates to organised crime or terrorism,so as to ensure, in particular, that intelligence gaong>theong>ring by ong>theong> Gardaí on suchmattersisnot affected; and— a code ong>ofong> practise which would include ong>theong> procedures to be followed inrelation for example, to ong>theong> introduction ong>ofong> participantsin ong>theong> interview, ong>theong>suspect’s rights, admissions ong>ofong>f camera (at ong>theong> scene, on ong>theong> way to ong>theong> station,etc.), interruption ong>ofong> ong>theong> interview for any reason, technical breakdowns duringong>theong> interview, opportunity for ong>theong> suspect to clarify anything he may have said,signing ong>ofong>f at play-back ong>ofong> ong>theong> cassettes in Court.To make arrangementsin relation to ong>theong> following matterswhen ong>theong> Minister hasconsidered ong>theong> foregoing recommendationsand agreed ong>theong> featuresong>ofong> ong>theong> pilotscheme:— stringent scientific monitoring ong>ofong> ong>theong> pilot scheme and ong>ofong> four controlled GardaDistricts;— assessment ong>ofong> ong>theong> operation and cost ong>ofong> ong>theong> pilot scheme, ong>theong> likely effects ong>ofong>audio and audio/video recording on ong>theong> criminal justice system as a wholeand ong>theong> extent to which ong>theong> pilot scheme shows that an effective andeconomic basis can be found for a national scheme; and— submission for ong>theong> Minister’s consideration ong>ofong> a report on ong>theong> outcome ong>ofong> suchassessment.21

APPENDIX2Membership ong>ofong> ong>theong>ong>Steeringong> ong>Committeeong>The current membersong>ofong> ong>theong> ong>Steeringong> ong>Committeeong> are asfollows:1. Mr. Justice Esmond Smyth (Chairperson)President ong>ofong> ong>theong> Circuit Court2. Assistant Commissioner Patrick CrummeyAn Garda Síochána3. Chief Superintendent Noel WhiteAn Garda Síochána, Operational Adviser4. Mr. David GormallyLegal Assistant,Office ong>ofong> ong>theong> Director ong>ofong> Public Prosecutions5. Ms. Claire GalliganOffice ong>ofong> ong>theong> Chief Prosecution Solicitor6. Mr. Patrick Gageby, S.C.The General Council ong>ofong> ong>theong> Bar ong>ofong> Ireland7. Mr. Michael StainesThe Incorporated Law Society ong>ofong> Ireland8. Mr. Michael KirraneGarda Planning DivisionDepartment ong>ofong> Justice, Equality and Law Reform9. Prong>ofong>essor James G. Lacy, B.E., C.Eng., F.I.E.E., F.I.E.I., EmeritusProng>ofong>essor ong>ofong> Electronic Engineering, University College Dublin.The ong>Committeeong> would like to acknowledge ong>theong> contribution since ong>theong> publication ong>ofong> ong>theong> 2 nd ong>Reportong>ong>ofong> past members, namely, Detective Superintendent John McElligot, Mr. Roy Pearson, (Office ong>ofong>ong>theong> Chief State Solicitor), Mr. John Cronin and Mr. FergusO’Callaghan (Department ong>ofong> Justice,Equality and Law Reform).The ong>Committeeong> would also like to acknowledge ong>theong> work ong>ofong> its Secretary, Mr. Peter Lumsden,Department ong>ofong> Justice, Equality and Law Reform, as well as past secretaries.23

APPENDIX3Maps ong>ofong> locations ong>ofong> Audio/Videong>ofong>acilities and graph ong>ofong> rollout25

Location ong>ofong> Audio/Video facilities in Dublin Stations26

Location ong>ofong> Audio/Video facilities in Dublin Stations27

APPENDIX4Technological issues regardingintroduction ong>ofong> DVDIn considering any possible advantages that DVD recording might ong>ofong>fer, in ong>theong> context ong>ofong> ong>theong> workong>ofong> ong>theong> ong>Committeeong>, it is worthwhile to restate ong>theong> specific operational requirements, which haveled to ong>theong> development ong>ofong> ong>theong> present system. These include that:1. The system should provide ong>theong> best available evidence ong>ofong> ong>theong> interview proceedings. Thisrequirement wasdeemed to be met by video recording ong>ofong> ong>theong> interview with sound. (Martin,1989)2. The integrity ong>ofong> ong>theong> system i.e. its ‘‘tamper proong>ofong>ing’’ should be mainly ensured by strictadministrative procedures raong>theong>r than technological means. The principle ong>ofong> ong>theong>se proceduresis that ong>theong> primary recording/s ong>ofong> ong>theong> interview is/are sealed in ong>theong> presence ong>ofong> and signed byong>theong> interviewee. This is ong>theong> so called ‘‘master copy / copies’’. The requirement ong>ofong> a ‘‘working’’copy dictated ong>theong> simultaneous production ong>ofong> a second recording. The interviewee’s right, asdetailed in ong>theong> Regulationsto a copy ong>ofong> ong>theong> recording ismet by ong>theong> production ong>ofong> a thirdsimultaneousrecording. The alternativesto thisthird recording could have been ong>theong> provisionong>ofong> eiong>theong>r centralised or local tape copying facilities. These options have considerable logisticaland cost implications compared with ong>theong> system adopted.3. The master copy (copies) should be stored following strict administrative procedures,preserving ong>theong> chain ong>ofong> evidence. The fact that ong>theong>y are never played and that ong>theong> seal remainsunbroken serves as a protection against accusations ong>ofong> tampering.4. Each frame ong>ofong> ong>theong> picture should be time and date stamped electronically and ong>theong> recordingmachine be physically incapable ong>ofong> rewinding or recording on oong>theong>r than a blank section ong>ofong>tape.5. The equipment should be uncomplicated and be easily operable by an ordinary non-technicalmemberThese operational requirements have led to ong>theong> specification ong>ofong> ong>theong> present triple deck recorder,which simultaneously records colour video and audio, on three blank tapes.DVD (Digital Versatile Disk or Digital Video Disk) is an entirely different recording medium andprocess. The disks are identical in size and appearance to a standard audio CD (compact disk).The ong>Committeeong> recognisesthat DVD hasimportant qualitiessuch as:1. The recording if made on a DVD ROM (Read Only Memory) is a once only process and soisong>ofong> itsnature incapable ong>ofong> alteration. Providing that ong>theong> chain ong>ofong> evidence ismaintained, thiswould remove forever any suspicion ong>ofong> tampering, as ong>theong>re is an inbuilt inalterability withDVD ROMs. The acronym WORM (Write Once, Read Many times) is used to describe thistype ong>ofong> disk.29

2. The storage requirements would be dramatically reduced compared with tape storage.3. Although not a prime factor, due to various factors inherent in ong>theong> digital image processinginvolved (see below), ong>theong> picture quality may be perceived to be superior to ong>theong> VHS system.This is mainly due to ong>theong> absence ong>ofong> background ‘‘noise’’ and constant colour saturation.4. High speed copying is possible.The ong>Committeeong> is advised, however, that considerable non-trivial work would be required todesign an optimum DVD system to meet ong>theong> operational requirements as set out above. Theprincipal reason for concern lies in ong>theong> recording process. In order to fit, say, one and a half hoursworth ong>ofong> video on a DVD ROM it is necessary to resort to compression ong>ofong> ong>theong> original digitalinformation obtained, when ong>theong> analogue camera output signal is digitized. Compression schemessuch as MPEG (Moving Picture Expert Group) 1, 2 etc. are classified as ‘‘lossy’’. In general, ong>theong>sework by storing ong>theong> immobile parts ong>ofong> ong>theong> images. The first frame is stored in ong>theong> processing systemfollowed by ong>theong> second frame. The moving parts ong>ofong> ong>theong> picture are determined by difference andpredictions are made ong>ofong> ong>theong> movement direction. These predictions are subsequently correctedbefore ong>theong> errorsspread too far. It isthisinformation regarding ong>theong> image, raong>theong>r than ong>theong> imageitself, which is ong>theong>n impressed on ong>theong> DVD ROM. Digital signal processing, is ong>theong>n necessaryduring playback to produce a facsimile ong>ofong> ong>theong> original image. Wheong>theong>r this image is ong>theong> bestavailable evidence is a matter ong>ofong> some debate. In that regard, ong>theong> ong>Committeeong> is advised that ong>theong>use ong>ofong> digital video surveillance systems is already causing evidential problems in oong>theong>rjurisdictions. It would be vital that this question be resolved before proceeding furong>theong>r.Considerable hardware and song>ofong>tware development would ong>theong>n be required to produce a systemto meet ong>theong> operational requirements.The existing system is operating satisfactorily at present and in this regard factors such as ong>theong>lifespan ong>ofong> ong>theong> existing equipment including ong>theong> need to obtain a return on ong>theong> existing investment,availability ong>ofong> tapes into ong>theong> future, ong>theong> cost ong>ofong> storage and ong>theong> availability ong>ofong> replacement partsand support for ong>theong> existing equipment all need to be considered before replacing ong>theong> existingtechnology.Furong>theong>r information on MPEG’s compression which has been downloaded from ong>theong> internet arecontained in ong>theong> following pages.30

Extract from Web Site ong>ofong> ‘‘ong>theong>’’The Tricks ong>ofong> MPEG ExplainedThe key to MPEG’s compression success is basing some frames on information stored in oong>theong>rs,and describing just ong>theong> changes.The most common system for ong>theong> compression ong>ofong> videois MPEG-1. It works like this: The single data stream ong>ofong>fong>theong> CD-ROM is split into video and audio components,which are ong>theong>n decompressed using separate algorithms.The video is processed to produce individual frames asfollows. Imagine a sequence ong>ofong> frames depicting a In order to provide 72bouncing ball on a plain background. The very first is minutes ong>ofong> video on a CDcalled an Intra Frame (I frame). I frames are compressed eiong>theong>r you have to reduceusing only information in ong>theong> picture itself just like ong>theong> quality or compressconventional bitmap compression techniques like JPEG. ong>theong> data massively in sucha way that you can stillFollowing I frameswill be one or more predicted frames decompress it in real(P frames). The differences between ong>theong> P frame and ong>theong> time. If you work out ong>theong>I frame it is based on are ong>theong> only data that is stored for sums, ong>theong> compressionthisP frame. For example, in ong>theong> case ong>ofong> a bouncing ball, ratio required is nearlyong>theong> P picture is stored simply as a description ong>ofong> how ong>theong> 200:1!position ong>ofong> ong>theong> ball has changed from ong>theong> previous Iframe. Thistakesup a fraction ong>ofong> ong>theong> space that wouldbe used if you stored ong>theong> P frame as a picture in its ownright. Shape or color changes are also stored in ong>theong> Pframe.The next P frame may also be based on this P frame and so on. Storing differences between ong>theong>frames gives ong>theong> massive reduction in ong>theong> amount ong>ofong> information needed to reproduce ong>theong>sequence. Only a few P frames are allowed before a new I frame is introduced into ong>theong> sequenceas a new reference point, since a small margin ong>ofong> error creeps in with each P frame.Between I and P frames are bi-directional frames (B frames), based on ong>theong> nearest I or P framesboth before and after ong>theong>m. In our bouncing ball example, in a B frame ong>theong> picture isstored asong>theong> difference between ong>theong> previousI or P frame and ong>theong> B frame and asong>theong> difference betweenong>theong> B frame and ong>theong> following I or P frame.To recreate ong>theong> B frame when playing back ong>theong> sequence, ong>theong> MPEG algorithm uses a combinationong>ofong> ong>theong> two references. There may be a number ong>ofong> B frames between I or P frames. No oong>theong>r frameisever based on a B frame so ong>theong>y don’t propagate errors like P frames. Typically, you will havetwo or three Bsbetween Isor Ps, and perhapsthree to five P framesbetween Is.31

APPENDIX5Summary ong>ofong> Case law dealingwith ong>theong> preservation anddisclosure ong>ofong> evidence by ong>theong>ProsecutionThe line ong>ofong> Judicial Authorities dealing with ong>theong> obligation on ong>theong> Prosecution to seek out, preserveand disclose evidence to ong>theong> Defence commenced with ong>theong> case ong>ofong> Murphy -v- DPP (1989) ILRM71. In this case ong>theong> Prosecution agreed to retain a stolen car for forensic examination but failedto do so. The Court held that even though ong>theong> forensic examination may have yielded nothingong>theong> Defendant was deprived ong>ofong> a reasonable possibility ong>ofong> disputing ong>theong> evidence against him andong>theong>refore prohibited hisTrial. In Braddish -v- DPP (2001 3.I.R. 127) a robbery wascaught on videocamera. The Gardaí claimed that ong>theong> video showed ong>theong> Applicant committing ong>theong> robbery. TheApplicant made a statement admitting ong>theong> robbery. The Gardaí returned ong>theong> video to itsownerafter ong>theong> Applicant had been arrested for ong>theong> robbery but before ong>theong> Trial.The DPP argued that ong>theong> retention ong>ofong> ong>theong> video was unnecessary once ong>theong> Applicant had admittedong>theong> robbery. The Supreme Court rejected thiscontention and Hardiman J’sremarkson Page 133and 134 are very instructive in relation to ong>theong> problem we are concerned with. ‘It is ong>theong> duty ong>ofong>ong>theong> Gardaí, arising from ong>theong>ir unique investigative role, to seek out and preserve all evidencehaving a bearing, or potential bearing, on ong>theong> issue ong>ofong> guilt or innocence. This is so wheong>theong>r ong>theong>Prosecution proposes to rely on ong>theong> evidence or not and regardless ong>ofong> wheong>theong>r it assists ong>theong> caseong>theong> prosecution is advancing or not’.He continues, ‘‘It isimportant to bear in mind that ong>theong> evidential itemsto which ong>theong> foregoingapplies are not only those with a direct and established evidential significance but includes thosewhich, in ong>theong> words ong>ofong> Lynch J., in Murphy -v- DPP ‘may give rise to ong>theong> reasonable possibility ong>ofong>securing relevant evidence’ ’’.At Page 134 he states ‘‘moreover, a member ong>ofong> ong>theong> Garda Síochána is not entitled to dispose ong>ofong>evidence, or omit to disclose it, simply because he personally has formed a view that it would notbe helpful’’.In Dunne -v- DPP (2002. 2 I.R 305) ong>theong> Applicant wascharged with ong>theong> robbery ong>ofong> a petrol station.There had been a video ong>ofong> ong>theong> robbery but ong>theong> Gardaí had not retrieved ong>theong> video tape. TheApplicant later made a statement ong>ofong> admission to ong>theong> robbery. He ong>theong>n sought a prohibition ong>ofong>histrial on groundsthat ong>theong> Gardaí failed to preserve potentially exculpatory evidence i.e. ong>theong>video ong>ofong> ong>theong> robbery. The applicant succeeded in prohibiting ong>theong> trial, though ong>theong> judgementsindicate different strands within ong>theong> jurisprudence.In Bowes-v- DPP (unreported 6 th February 2003) ong>theong> Supreme Court upheld ong>theong> alreadyestablished principles but held against Bowes because he failed to identify any reason for arequested fingerprint examination eiong>theong>r at ong>theong> time ong>ofong> his arrest or at any time since.33

In McGrath -v- DPP (unreported 6/2/2003) ong>theong> accused had been charged with DangerousDriving causing death. She had asked for ong>theong> motor vehicle to be preserved for forensicengineering examination. This had not been done so it was held that Ms. McGrath had sufferedong>theong> loss ong>ofong> a reasonable prospect ong>ofong> obtaining evidence to rebut ong>theong> case made against herbecause ong>theong> motor vehicle had been parted with by ong>theong> Gardaí.Finally, in McKeown -v- The Judgesong>ofong> ong>theong> District Court and ong>theong> DPP in a Judgement deliveredby Judge McCracken on ong>theong> 9 th April 2003 (unreported) where he held that ong>theong> Applicant hadnot justified ong>theong> necessity for a fingerprint examination ong>ofong> a vehicle. In that case ong>theong> accused wascharged with assaulting a Garda with a petrol can which he had taken from a vehicle which hehad broken into.In thiscase it isnote worthy that McCracken, J while following ong>theong> principlesset out in ong>theong>Murphy, Dunne and Braddish cases indicated that ong>theong>se principles must be tempered by ong>theong>application ong>ofong> ong>theong> concept ong>ofong> reasonableness. At page 10 he points out that ong>theong>re obviously arelimitsto ong>theong> length to which ong>theong> Gardaí must go in eiong>theong>r seeking out or preserving evidence. Tothat extent each case must be judged on its own facts. He reiterates this point at ong>theong> bottom ong>ofong>page 10 and ong>theong> top ong>ofong> page 11 ong>ofong> his Judgement. On page 135 in ong>theong> Braddish case HardimanJ stated as follows:-‘‘ but in cases where ong>theong> evidence is not ong>ofong> such direct and manifest relevanceong>theong> duty to preserve and disclose has to be interpreted in a fair and reasonable manner’’. Hecontinued later on ‘‘certainly it cannot be interpreted asrequiring ong>theong> Gardaí to engage indisproportionate commitment ong>ofong> manpower or resources in an exhaustive search for everyconceivable kind ong>ofong> evidence. The duty must be interpreted realistically on ong>theong> fact ong>ofong> each case’’.34

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