Courts in Northern Ireland have made important admissibility rulings regarding the authentication of videos presented as evidence in terrorism cases.  One case addresses the admission of key video evidence when no authentication witnesses were called at all while the second case deals with the admissibility of unsupported video as well as questionable video posted to YouTube.

In R. v. Murphy and Another, 1990 Northern Ireland 306 (Northern Ireland Court of Appeal), at issue was the admissibility of video evidence purporting to show the defendants involved in the murder of two soldiers in Belfast.  One video was taken from a helicopter camera that caught the entire event on video and the other was from a European film crew camera operator who captured relevant parts of the event at ground level.  At trial, the judge admitted the European video into evidence notwithstanding that the original video was not produced, nor was the camera operator.  The Court of Appeal was asked to review the soundness of the trial judge’s ruling in this regard.

The Court of Appeal noted that video evidence is admissible if there is a prima facie showing of authenticity by the party tendering the video into evidence.  The Court of Appeal stated:

Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct way is to call the cameraman who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways and from other sources. The film may be proved authentic by comparing it with films taken by others of the same event, taken at the same time or even at a different time. Or, as in the instant case of the heli-tele film, by comparing it with a film of the same events, that is authentic beyond doubt…

Because the authenticity of the helicopter video had been independently established, the trial judge was able to use that video in a side-by-side comparison to authenticate the European video, an approach approved of by the Court of Appeal. This case illustrates the principle that authenticated video can be used circumstantially to authenticate other video that is not itself independently capable of authentication.  

In R. v. Quinn, [2010] NICC 27 (Northern Ireland Crown Court), the defendant faced one count of managing a meeting in support of a prescribed organisation, contrary to Section 12(2) of the Terrorism Act 2000.  The prosecution’s case was that on a certain date, at Edendork Cemetery in County Tyrone, a meeting took place which included members of the Continuity IRA, an organisation prescribed under the Terrorism Act 2000 and that during the course of this meeting, shots were fired. The primary evidence against the defendant was anonymous YouTube video purporting to show the defendant committing the alleged offence.  A comparison between photographs taken by the police of the location in question and the tendered video demonstrated that the video was taken at the same location. The prosecution argued that since the video showed the defendant at the noted location, it should be admitted whereas the defence argued that the video evidence was inadmissible as it had not been authenticated by the prosecution.  

The trial judge noted the following about the YouTube video evidence:

It was accepted that material on “You Tube” could be either digital or analogue but Sergeant Bleakley could not say whether this material was either digital or analogue when it was first filmed or uploaded. He accepted that material on “You Tube” could be accessed by anyone and that it was open to anyone to download the material. Once downloaded digital material, in particular, but all material, can be altered, edited and changed in many respects and having been altered, can be uploaded once more in its new altered form. It can be manipulated or altered and there is no way of knowing whether or when this occurred unless one has available the original unedited material with which to compare it.

Sergeant Bleakley accepted that there is no way of knowing whether this has occurred in relation to these particular pieces of film. It is quite clear that the first more sophisticated piece of film is not a continuous piece. This film has been edited, music has been added to it, it has been cut in various places and has been pieced together either from one original source or a number of sources. It is not clear whether it was one piece of film shot by one cameraman or whether it has come from a number of sources. The second piece of film has at least the appearance of being filmed continuously on the one occasion but in relation to the second short film it is not clear whether there was additional material filmed recorded at the time, which might alter the context of what is portrayed on the film and in particular the actions or involvement of the defendant.

In this case I consider that it is a matter of real concern that there is no comparative standard, no authenticated piece of film with which to compare either of the two pieces which the prosecution seek to admit in evidence before this court. Unlike the Murphy case I do not have the “heli-tele”, authenticated film against which this court could compare either of the two pieces of film. To that extent there is no opportunity to compare and by that process authenticate the material.

The prosecution argued that one unauthenticated video could be used to authenticate the other and vice versa.  This would be a rather novel approach given that there was no foundation video upon which the court could rely.  In response to this argument, the judge stated:

I reject Mr Murphy’s submission. In my view it would be quite inappropriate to take two unauthenticated pieces of material and use either of them to authenticate the other. I would have no reliable proven standard upon which to base my comparative assessment. If there were deficiencies in the authenticity, accuracy or reliability of either or both films their use as standards would serve to introduce and possibly increase the unreliability of the other one or both. In addition I would be faced with the hopeless dilemma of deciding which of the unauthenticated films I should choose as the standard.

The Court of Appeal [in Murphy] indicated in clear terms that material such as this could only be admitted if prima facie authentic. That requires more than the mere production of a piece of film. It requires that the provenance of the film is established by the prosecution, by evidence, in a way that permits the defence to investigate and examine the provenance and reliability of the material. This process further requires the prosecution to establish that the material is reliable in the sense that it has not been manipulated or altered. The evidence before me does not include any evidence as to the provenance of the material other than that it was posted on the “You Tube” site. The mere posting of such material on such a site does not invest it with any authenticity, rather the evidence that I have heard concerning the way in which this can be done raises very real concerns that material on this site can be altered and manipulated easily and freely and that the defence would have little if any opportunity of investigating and determining the authenticity and reliability of such films.

As a result of the uncertain state of the evidence, the judge ruled that the YouTube video was inadmissible for lack of authentication.

This decision was appealed to the Northern Ireland Court of Appeal, [2011] NICA 19. The Court of Appeal did not expressly disagree with the trial judge’s reasons for his ruling on video authentication but did consider additional evidence that was not taken into account by the trial judge on this issue.  When the defendant was interviewed by the police, statements were made to him by the police and by his solicitor which the defendant did not expressly deny.  The Court of Appeal found that his silence could be inferred as an admission of his appearance in the videos in question.  The Court further noted that admissibility of the YouTube video did not depend exclusively on authentication of the video in the traditional sense. Authentication can be proven circumstantially and admissions by the defendant could be used to offer the requisite proof.  Because the trial judge did not take this evidence into account, the appeal was allowed, and the Court ordered the case back to trial so that the trial judge could consider this additional evidence.  This ruling does not detract from the soundness of the approach taken by the trial judge on authentication.

The approaches taken in these cases are consistent with decisions in other jurisdictions when considering the admissibility of video evidence that does not have a first party sponsoring witness. Authentication is the responsibility of the proffering party.  Proof of authenticity can be given by direct evidence such as the videographer or a person with adequate knowledge present at the location shown at the time the video was recorded.  Proof can also be given via circumstantial evidence which does not directly prove authentication but provides sufficient supporting evidence to allow such a ruling to be made.  Examples of such evidence include using another authenticated video of the same scene, relying on distinctive characteristics of the scene recorded, timing, location details and admissions made by the defendant.  This underscores the importance of context when considering video authenticity and the need to take a broader view when considering how it may be established.