Peadar O'Cearnaigh ✒ Defence Highlights A ‘Vacuum In The Evidence’ as a seven year Belfast case continues.


On Thursday 25 March, there was an oral hearing at Laganside Crown Court, Belfast in the long-running trial of Colin Duffy, Henry Fitzsimons, and Alex McCrory. And as The Canary previously reported, the men’s defence raises serious questions about the prosecution’s evidence against them.

Featured image via Pixabay – WilliamCho 
Unsplash – Kelly Sikkema

In particular, it questions the experts’ analysis of alleged covert audio recording and the role of MI5. In the defence’s oral submission on 25 March, it reiterated these questions. This trial has been running for over two years.

The charges

On 5 December 2013, there was an attack on a PSNI convoy in north Belfast. Duffy, Fitzsimons, and McCrory were remanded in custody in December 2013.

They were imprisoned without trial for over two years before being released on bail in February 2016. Fitzsimons and McCrory are charged with attempted murder, firearm possession, preparation of terrorist acts, directing a terrorist organisation, and membership of a proscribed organisation. Duffy is charged with preparation of terrorist acts, directing a terrorist organisation and membership of a proscribed organisation. 

The men were allegedly recorded and videoed by MI5 in a park in Lurgan discussing the attack the following day. Voice experts professor Peter French and Dr Christin Kirchhubel gave evidence in court about this alleged recording. Kirchhubel had once worked for French. They said the alleged undercover MI5 recordings of the three men supported the claim that they’re the suspects in the attack on police.

But the defence exposed inconsistencies in French and Kirchhubel’s analysis. And on 25 March, it said that part of French’s analysis of the audio was “fundamentally flawed”. According to the defence, the features identified by the experts on the recording could belong to “hundreds of thousands of people” – so their analysis of the recording “is meaningless”.

Admissibility of evidence

The defence dismissed the prosecution’s apparent claim that evidence needs only to be “relevant” to be “admissible” in court, claiming it must also be “prima facie authentic” to be admissible. This is why, according to the defence: 

the prosecution submissions on this issue are really…misconceived. Because they suggest that the only test is relevance.

And the defence questioned whether the prosecution had properly proven the authenticity of the tape recordings before the court. So on that basis, these recordings should be inadmissible.

The defence then turned to the evidence of MI5 technical operative PIN 9281. It said it didn’t have access to the relevant material to properly challenge this operative’s evidence. It also said it couldn’t fully accept his evidence because:

We don’t know what happened. We have not made positive allegations against any of these witnesses as to what took place because we simply don’t know. And cannot properly say. But we do not accept at face value, what’s being suggested to the court as the account of what happened. Because it is so obviously wrong in different respects and contradictory, self contradictory…including in particular in relation to PIN 9281

It added PIN 9281’s evidence is “not worthy of belief”.

The defence also asserted that MI5 deliberately destroyed all the data including the metadata, stating:

"there is a vacuum in the evidence" 

And:

"there’s nothing conventional about this case."

Cognitive bias

As The Canary previously reported, the defence suggested French and Kirchhubel were influenced by cognitive bias. And on 25 March, the defence pointed out that a draft transcript provided by the police influenced their analysis. This is because the identities of the suspected speakers were on that transcript. In addition to receiving this transcript, the defence claimed French said he “was given a steer”.

It said French and his colleagues should have told the police not to provide this transcript. The defence added that while there are steps to mitigate the risk of cognitive bias, Kirchhubel didn’t take those steps. It said French admitted he wouldn’t conduct the process this way again.

When will this all end?

The judge said he would aim to give his ruling in the week beginning 19 April.

Vacuum In The Evidence

Peadar O'Cearnaigh ✒ Defence Highlights A ‘Vacuum In The Evidence’ as a seven year Belfast case continues.


On Thursday 25 March, there was an oral hearing at Laganside Crown Court, Belfast in the long-running trial of Colin Duffy, Henry Fitzsimons, and Alex McCrory. And as The Canary previously reported, the men’s defence raises serious questions about the prosecution’s evidence against them.

Featured image via Pixabay – WilliamCho 
Unsplash – Kelly Sikkema

In particular, it questions the experts’ analysis of alleged covert audio recording and the role of MI5. In the defence’s oral submission on 25 March, it reiterated these questions. This trial has been running for over two years.

The charges

On 5 December 2013, there was an attack on a PSNI convoy in north Belfast. Duffy, Fitzsimons, and McCrory were remanded in custody in December 2013.

They were imprisoned without trial for over two years before being released on bail in February 2016. Fitzsimons and McCrory are charged with attempted murder, firearm possession, preparation of terrorist acts, directing a terrorist organisation, and membership of a proscribed organisation. Duffy is charged with preparation of terrorist acts, directing a terrorist organisation and membership of a proscribed organisation. 

The men were allegedly recorded and videoed by MI5 in a park in Lurgan discussing the attack the following day. Voice experts professor Peter French and Dr Christin Kirchhubel gave evidence in court about this alleged recording. Kirchhubel had once worked for French. They said the alleged undercover MI5 recordings of the three men supported the claim that they’re the suspects in the attack on police.

But the defence exposed inconsistencies in French and Kirchhubel’s analysis. And on 25 March, it said that part of French’s analysis of the audio was “fundamentally flawed”. According to the defence, the features identified by the experts on the recording could belong to “hundreds of thousands of people” – so their analysis of the recording “is meaningless”.

Admissibility of evidence

The defence dismissed the prosecution’s apparent claim that evidence needs only to be “relevant” to be “admissible” in court, claiming it must also be “prima facie authentic” to be admissible. This is why, according to the defence: 

the prosecution submissions on this issue are really…misconceived. Because they suggest that the only test is relevance.

And the defence questioned whether the prosecution had properly proven the authenticity of the tape recordings before the court. So on that basis, these recordings should be inadmissible.

The defence then turned to the evidence of MI5 technical operative PIN 9281. It said it didn’t have access to the relevant material to properly challenge this operative’s evidence. It also said it couldn’t fully accept his evidence because:

We don’t know what happened. We have not made positive allegations against any of these witnesses as to what took place because we simply don’t know. And cannot properly say. But we do not accept at face value, what’s being suggested to the court as the account of what happened. Because it is so obviously wrong in different respects and contradictory, self contradictory…including in particular in relation to PIN 9281

It added PIN 9281’s evidence is “not worthy of belief”.

The defence also asserted that MI5 deliberately destroyed all the data including the metadata, stating:

"there is a vacuum in the evidence" 

And:

"there’s nothing conventional about this case."

Cognitive bias

As The Canary previously reported, the defence suggested French and Kirchhubel were influenced by cognitive bias. And on 25 March, the defence pointed out that a draft transcript provided by the police influenced their analysis. This is because the identities of the suspected speakers were on that transcript. In addition to receiving this transcript, the defence claimed French said he “was given a steer”.

It said French and his colleagues should have told the police not to provide this transcript. The defence added that while there are steps to mitigate the risk of cognitive bias, Kirchhubel didn’t take those steps. It said French admitted he wouldn’t conduct the process this way again.

When will this all end?

The judge said he would aim to give his ruling in the week beginning 19 April.

18 comments:

  1. It seems incredible that a trial can be allowed to continue for seven years. This one is sustained by falsehoods. Given the presumption of innocence, there should be a statutory bar on the length of time a case should be allowed to run. And that is even before we get to the dirty tricks.

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    1. I get the impression they have been aggressive enough in that they have robustly taken apart the prosecution case. The questioning of the evidence has been going on since the Defence began the presentation of its case. But it took so long before it got the chance to make its case because of the time it took for the trial to start.
      I simply cannot imagine 7 years meeting a reasonable time requirement.
      Had the cops had their way the three men on trial would still be on remand in the jail.
      Ta Power did about four years on remand and it was regarded as excessively wrong but that covered a number of different cases whereas this covers just the one.
      I think the judge rather than the Defence is not being aggressive enough with the Prosecution. My own view is that he should dismiss it.
      I fail to see any way how other than by way of judicial malfeasance the Prosecution can win its case.

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    1. I think to ask for a stay would not have achieved much other than to have asked for a stay. I believe they have asked for evidence to be ruled out. If I recall there was a trial within a trial and the judge overruled Defence submissions.
      It is the judge who decides on the admissibility of questionable evidence not the Defence. It seems to me that the Defence has challenged the expert witnesses at each step of proceedings to the point where the judge is set to rule on the strength of those challenges.
      The men on trial are in a better position than me of course to make the call and they might well agree with you. Like most others I follow it at a manner that is not forensic.

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  5. I take a different view. I think they have been challenging the admissibility of the evidence - and did that during what became known as a trial within a trial.
    And the obvious question has been posed - that is what the judge is deliberating on now.
    That the copies have been accepted as evidence is a judicial decision. The judge overrode the opposition of the Defence and allowed the evidence to be presented. Now he is to consider what weight he is to afford it as evidence.
    I don't know if any application was made for a stay. The people on trial would know that or know why there was no application. Nor do I know what grounds would constitute a mistrial. if there to be one declared I guess the only just outcome would be a total dismissal rather than a retrial given the length of time already consumed by this one.
    In my view the judge is being wholly unfair in ever having allowed a case to proceed for so long. I suspect he is seeking ways to allow the prosecution to get its case over the line. Even the manner in which he is trying to reconcile the irreconcilable seems to me to be unfair.

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    1. Christy - I don't know how it could have been challenged seven years ago in circumstances where the prosecution only have to present a prima facie case. Even at the bail court or depositions a challenge has virtually no chance. The opportunity to challenge comes when the trial starts and that took quite some time in this case. And during the trial the admissibility was challenged.
      I am not familiar with the Latin terms nor the concepts.
      I don't know what Alex or his co accused think. They might agree with you but thus far Alex - the only one I keep regular contact with, has not expressed that view. I have always got the sense form talking to him and carrying his articles, that much of the Defence case is premised on that very challenge.

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    1. Unfortunately, I don't really follow that

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  8. It is a easier second time round but not a lot!

    My experience is that evidence is not weighed properly until a trial. A least that was how it was back in the day.

    The PE was simply getting you returned for trial with the minimum of fuss. Outside of that I am unaware of any pre-trail procedure for examination of the evidence. That starts with the trial. Evidence does not get presented until the trial and in the course of the trial a judge will be asked by the Defence to rule as inadmissible certain evidence from the Prosecution. It might even ask for the case to be dismissed.
    Once that is refused the trial continues rather than starts. At least that is how I understand it.
    The prima facie case is made before the trial.
    The copies have been rendered admissible only after a fight by the defence not to have them rendered. The entire case if I am reading it correctly has been fought around the inadmissibility or otherwise of the material. Why the trial within a trial? To me, the judge was considering the very question of admissibility during the trial within a trial. What the judge is now considering once he allowed the copy as evidence is that if the links between the copy and the men on trial are sufficient to allow inferences to be drawn against them. In my non-legal mind the judge has little grounds for proceeding down the path he has taken because it seems impossible to the join the dots.
    I don't see what else the the Defence can do other than object to the copies for their own sake if the originals are not there and in a situation where the Prosecution has presented the copies and the judge has thus far ruled them as admissible.
    The way you portray the house painting thing insofar as I follow it seems to be more the fault of the judge than the Defence. He has them arguing over this when he should have pulled the plug.

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  9. To put it in steps on basis of the only evidence is audio recordings:
    1: arrest
    2: P: gives copies of the evidence to D
    3: D: should ask for missing originals or dismiss charges as no case to answer.
    4: P: we have copies and 2 experts who will vouch for their authenticity
    5: D: -ok we'll fight the copies and fact experts listened to them in company of P
    --they should have argued no originals no admissible evidence hence no case to answer(unless other evidence)

    Trial starts
    D: Both experts were cognitively biased listening to the copies bla bla bla
    7 years later -hey, where are the original tapes?

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    1. Not how I see it.
      Arrest. Cops put questions to those arrested.
      Charge and remand.
      No need for disclosure until PE. Defence can challenge but challenge not strong enough so Beak rules a Return For Trial.
      Trial begins many years after arrests.
      Arguments then take place on admissibility during trial.
      Judge rules on admissibility.
      If admissible judge decides on whether the admissible evidence is of a quality to draw inferences against accused.
      That is how my own case worked which was back in the 70s. I am not aware of a change in the law since - but I could be wrong - that has led to the process being carried out differently.
      In this case the authenticity of the recordings and their link to the accused has been challenged from the moment it was possible to do so.

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  10. AM

    I get what your saying but the originals are crucial evidence because the copies could be significantly different in many ways. Things have changed only so far as the judiciary have tried to move away from diplock style of justice. If the trial is conducted Diplock style, which it appears may be the case, then any convictions will be on inferences only. I totally get your point on how the Judge decides on the admissibility. As I see it there were 2 approaches to put up a defence in this case -one approach is that no fair minded judge/jury could convict on copies of recordings that cannot be authenticated against the originals and neither expert add anything of value because they themselves did not hear the originals. The second approach is that you accept the copies as valid and challenge the cognitive bias of the 2 experts who associate the accused with the voices on the copies --the danger with that is that a fair minded judge/jury may not see the cognitive bias as devasting to the prosecution case because both experts were able to listen to the copies themselves and form their own judgment --(that was not the case in the Flynn case that A referred to -in Flynn the original recording was too bad quality that the police script would have improperly prejudiced the expert in that case).

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    1. The originals are crucial and could easily be different in the ways you point out. But I thought this was the argument of the Defence and not merely a reliance on cognitive bias. I think the latter has to be teased out in cross examination. Yet another filter to strip the Prosecution case of all the impurities down to the point where there is nothing pure in it. But cognitive bias is ancillary, from what I can gather, to the Defence case.
      I think where you outline the first approach is how the case has been primarily fought.
      The more I have looked at this case over the years, particularly during the course of the trial, the more my suspicions have grown that this is a deeply flawed prosecution which should never have been allowed to proceed this far. I never offer an opinion on the possible guilt or innocence of the men on trial but stick to my understanding of the evidence. My view is that this is a rogue investigation where the evidence has been manipulated for the purpose of creating a false bottom in the case so that bogus evidence can be smuggled past the rigours required for admissibility. And to my mind the obstacle that the Prosecution has thus far not been able to scale has been the robustness of the Defence counter attack. The Prosecution case is taking so long because the Defence has tripped it up at every point. It is entitled to do that.
      The judge I feel has an obligation not to let the Prosecution stumble on forever and a day. He has a duty of care to the accused and an obligation to ensure that there is no abuse of process. I think he has failed lamentably on both.

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  11. AM

    I cant fault your assessment. I have not followed the case as closely as you have. There are a lot of things that do not add up for me. If the D knew how the absence of the originals was going to be treated then why didn't they get an expert of their own to assist the court in understanding how the originals are of importance. Yes the judge has a role to play to ensure the process is fair but if he is wilfully unfair then it is made easy for him if he can rely on 2 unchallenged experts -and I mean challenged by an equally or better qualified expert listener. I am also curious about how and why the prosecution got 2 experts on the same evidence? I think if applications for a stay on proceedings had periodically been made over the years then that would also go to the appearance of unfairness, unless valid reasons were given for refusing -as the mantra about lottery tickets goes -if your not in you can't win. If no valid reasons were given then that gives an extra ground for any potential appeal that will probably be pursued. Why has the trail taken so long? Was there a closed material procedure involved? Is there other evidence?

    Through my own research where I have looked at the US, Canada, UK, Ireland, Australia and NZ in a significant number of cases defence lawyers have caused their own clients to suffer a miscarriage of justice. An extreme case would be the Stefan Kiszko case -he was completely innocent and his own lawyers put him in the box to protest his innocence at his trial -afterwards his lawyers pointed at their client and said 'see our client is deluded'. His lawyers thought his condition of hypogonadism made him sexually deviant -all it meant was his body did not produce sperm and the real killer could. Kiszko's lawyers thought a deminished responsibility verdict was in his best interests. My point is that lawyers can be convinced of their own approach to a case but is it the right one for their client? There are questions being raised in As case that have me wondering why they were not answered at a much earlier stage -evidence can be defeated long before it gets to a trial, so it does not just happen once the trial begins.

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  12. I think they did have an expert of their own. I don't recall too much of the detail. So I don't think the evidence went without expert challenge.
    I don't think CMP was involved.
    Defence lawyers have indeed caused their clients no small measure of grief. I don't see it being a factor here. I recall the Kiszko case, mainly because he died a year after getting his freedom. Ironically, the barrister who represented him was later Home Secretary and had to reopen the case.
    I don't know how evidence gets defeated before it gets to trail if the only place to have it presented and tested is at the trial. The PE just doesn't cut it.

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