Photo by Grant Ritchie on Unsplash
Technology: blessing or curse?
The law has always had to deal with technological advances and these developments are often presented in a way which shows the legal system all too often playing catch up. The chronic problem of identity fraud is a case in point.
What if, however, we look at things from a different angle? Could the law use technology to its advantage?
Alexa, there’s been a murder!
Recently, I was intrigued by a story from the American State of Florida. In November 2019, it was widely reported that the Police in Florida had been able to solve a murder. Nothing particularly unusual about that, but it was the circumstances surrounding the murder which I found striking.
Adam Reechard Crespo was accused of murdering his girlfriend, Silvia Galva when she sustained a knife wound to her chest. Broward County Sheriff Department led the investigation into Ms Galva’s death and Crespo was the prime suspect.
The Sheriff’s Department was particularly anxious to obtain access to Crespo’s Amazon Echo speaker (which is connected to Amazon Alexa). It was believed that the transcripts of the recordings would shed vital evidence on the circumstances of the crime and the relevant search warrants were duly obtained by the officers of the law.
Interestingly, Crespo’s defence lawyers were also keen to have access to the Alexa transcripts in the belief that they might establish his innocence.
A link to the story on the Sky News website can be found below:
https://news.sky.com/story/amazon-echo-may-have-been-a-witness-to-a-suspected-murder-11852886
Before we get carried away, it’s useful to remember that forward thinking legal professionals (the police; defence and prosecuting lawyers) have always been keen to use technological advances in support of their work.
Photographic evidence
Some years ago, I was reading an article in The Derry Journal from Northern Ireland which recounted the story of the first murder trial in British legal history where photographic evidence was used. The accused was Father James McFadden, a Roman Catholic priest who was suspected of involvement in a conspiracy to murder William Martin, a Royal Irish Constabulary Inspector, in Gweedore, County Donegal in February 1889 (the locality was still part of the United Kingdom of Great Britain and Ireland).
The murder took place against the backdrop to the so called Donegal Sheep Wars where wealthy landowners were driving their tenants off their estates in order to prioritise sheep farming. In this way, the situation was very similar to what happened in Scotland during the Highland Clearances. Father McFadden was a prominent supporter of the Irish Land League which was a political and social movement which campaigned against the actions of the landowners.
Anyway, back to Father McFadden’s fate: he was eventually acquitted of murder by the Court thanks, in no small part, to photographs which had been taken by the Glasgow born, James Glass (now residing in Derry). The priest’s defence lawyers had approached Glass to take a series of pictures of rural life in County Donegal. Their intention in doing so was to provide context to the case i.e. the harshness of day to day living for many people in that part of the world. Father McFadden eventually agreed to plead guilty to the far lesser charge of obstructing Police officers (for which he served 9 months in total in Derry Gaol).
A link to an article in The Irish News about Father McFadden’s trial can be found below:
http://www.irishnews.com/news/2013/07/08/news/-land-war-pictures-on-show-at-museum-64351/
Fingerprint evidence
Fingerprint evidence was first used in a criminal trial in the United Kingdom in 1902 where it was used to convict Harry Jackson who had been accused of the theft of billiard balls.
That said, in 1858, Sir William Herschel, a senior Magistrate in British ruled India was the first European who had allegedly compiled the first fingerprint register to assist him in his work.
A link to an article about the historical importance of fingerprint evidence can be found below:
The Telegraph system
In 1910, Dr Harvey Hawley Crippen was attempting to flee English justice. The doctor had murdered his wife and had taken passage on the liner, Montrose, which was sailing to Canada.
Crippen was travelling under a false name and had attempted to disguise himself. The Captain of the ship recognised Crippen and his lover (who was disguised as a boy in order to pass herself as the doctor’s ‘son’).
Captain Kendall ordered the ship’s telegraphist to send a message with this intelligence to Scotland Yard. This was fortunate because the ship had not yet left the telegraph range of the British Isles. Had the Captain made the discovery later, the story might have had a very different outcome.
Upon receiving this news, Chief Inspector Dew, who was leading the murder investigation, boarded a faster liner, SS Laurentic, which arrived in Canada before the Montrose. The good Chief Inspector boarded Montrose as it came into the St Lawrence River (he was disguised as a river pilot). The Captain of the Montrose had, by now good reason to believe that the fugitives would be caught. He invited the pair to meet the pilots as they were boarding the vessel. At that point, Chief Inspector Dew revealed his true identity. Dew was able to effect Crippen’s arrest because Canada was, at this time, still a Dominion of the British Empire.
Doctor Crippen was sent back across the Atlantic to England where, following his trial at the Old Bailey, he was executed by hanging at Pentonville Prison.
DNA samples
DNA evidence was first used in 1986 to convict Colin Pitchfork of the rape and murder of two girls (which had occurred 3 years earlier in the Leicestershire area of Narborough). Sir Alec Jeffreys, a genetic scientist, had made the fortuitous breakthrough that DNA could be used to solve crimes as part of his research. Crucially, the test which Jeffreys developed helped to clear the name of an other suspect in the investigation (Richard Buckland).
A link to an article in The Guardian reflecting on the 30th anniversary of this momentous effect of DNA profiling can be found below:
The Elaine Doyle Murder Case
The contribution of DNA as corroborative evidence was powerfully brought home to me in a fairly recent Scottish murder trial and appeal before the High Court of Justiciary in which a 30 year old murder was finally solved (see Her Majesty’s Advocate v John Docherty [2014]; and John Docherty v Her Majesty’s Advocate [2016] HCJAC 49 HCA/2014/3517/XC).
I have to confess more than a slight interest in the case: my father was a member of the CID team which worked on it during the mid 1980s.
In 1986, Elaine Doyle aged 16, was found murdered near her home in Greenock. Despite an extensive Police investigation, the murderer was never caught. Hopes of a breakthrough to this unsolved murder seemed to dwindle as the years went by.
Until a breakthrough came unexpectedly (and somewhat sensationally) in 2012 when John Docherty was identified as a suspect.
As Lord Carloway, the Lord Justice General, noted crime scene officers at the time of the murder had collected DNA evidence – the value of which would only become apparent nearly 3 decades later:
‘The principal evidence against the appellant [John Docherty] came, first, from matches between the appellant’s DNA, ultimately obtained in 2012, and cells captured on tape applied to the body of the deceased as it lay in the lane shortly after its discovery.’
As Lord Carloway, the Lord Justice General also remarked in the murderer’s appeal against conviction and sentence (in 2016):
‘The protection of the crime scene in 1986 was not as it would be today. By coincidence, an early part of the investigation at the scene was video recorded, in what was then a pioneering experiment. This was in the days before DNA profiling had captured the imagination of criminal investigators; modern processes only having been developed two years later.’
It was during a review of the tape sample in 2008 (when the extraction of DNA from older samples had greatly improved) that the first steps towards a tentative breakthrough arose. In 2011 and 2012, a review of the index of names held by the Police led to John Docherty being traced. In 1986, a friend of Docherty’s had identified him as a person of interest in a statement to the Police. Regrettably, Docherty was never questioned. When this omission came to light during the cold case review in 2011/12, Docherty was asked to provide a voluntary sample of DNA to the Police – along with the hundreds of other local men who were viewed as potential suspects. Docherty actually provided two samples and these matched the cells captured on the piece of tape taken from the crime scene in 1986.
Docherty was finally brought to justice in June 2014 when, after a 52 day trial at the High Court of Justiciary in Edinburgh, he was convicted of the murder of Elaine Doyle. Sadly, Elaine’s father never lived to see this day.
Although Docherty’s defence team challenged the DNA evidence on the grounds that the 1986 sample could have been contaminated and was therefore unreliable, the jury (by majority verdict) clearly was of the opinion that the Crown’s evidence proved beyond reasonable doubt that he was the murderer.
A link to the judgement of the Appeal Court of the High Court of Justiciary can be found below:
CCTV footage
Finally, CCTV evidence has been used successfully by the prosecution to obtain convictions. In earlier Blog (Corroboration published on 1 March 2019), I discussed the use of CCTV footage in relation to the appeal of Jacqueline Shuttleton against a conviction for careless driving in terms of the Road Traffic Act 1988 (see Jacqueline Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12 HCA/2019/20/XC).
In the Shuttleton appeal, reference was made to an earlier decision – Gubinas & Radavicius v HMA [2017] SCCR 463.
Gubinas & Radavicius contained a very interesting statement (at paragraph 59) which became known as the “Cluedo” reference (after the well known murder mystery board game):
“….once the provenance of the images is shown, they become real evidence in causa which the sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony. Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.”
Related Blog article:
Corroboration
https://seancrossansscotslaw.com/2019/03/01/corroboration/
Conclusion
Although technology can often be portrayed as leaving the Police and the legal profession playing catch up, there can be no doubt that when the potential of these developments is appreciated they can be of great assistance to the cause of justice. In particular, advances in photographic and CCTV evidence and DNA and fingerprint samples have undoubtedly been of great service to criminal law – for both the prosecution and the defence.
Copyright – Seán J Crossan, 28 December 2019
Seán Crossan's Scots Law 