Computer Generated Evidence In Court Essay Research

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Computer Generated Evidence In Court Essay Research

Computer Generated Evidence In Court Essay, Research Paper

Computer Generated Evidence In Court


We are populating in what is normally described as an & # 8216 ; information society & # 8217 ; and as

the concern community makes of all time greater usage of computing machines the tribunals are traveling

to happen that progressively the differences before them turn on grounds which has at

some phase passed through or been processed by a computing machine. In order to maintain in

measure with this pattern it is critical that the tribunals are able to take history of

such grounds. As the Criminal Law Revision Committee recognised, & # 8216 ; the

increasing usage of computing machines by the Post Office, local governments, Bankss and

concern houses to hive away information will do it more hard to turn out certain

affairs such as cheque card frauds, unless it is possible for this to be done

from computing machines & # 8217 ; ( CLRC 1972, para 259 ) .


The jurisprudence of grounds is concerned with the agencies of turn outing the facts which are

in issue and this needfully involves the adduction of grounds which is so

presented to the tribunal. The jurisprudence admits grounds merely if it complies with the

regulations regulating admissibility. Computer end product is merely admissible in grounds

where particular conditions are satisfied. These conditions are set out in item

in subdivision 69 of the Police and Criminal Evidence Act ( PACE ) 1984 ( see farther

Nyssens 1993, Reed 1993 and Tapper 1993 ) .

In general the rules of admissibility are that the grounds must be

relevant to the cogent evidence of a fact in issue, to the credibleness of a informant or to

the dependability of other grounds, and the grounds must non be inadmissible by

virtuousness of some peculiar regulation of jurisprudence ( Keane 1994, pp 15-20 ; Tapper 1990, pp 51-

61 ) .

Real grounds normally takes the signifier of some stuff object ( including computing machine

end product ) produced for review in order that the tribunal may pull an illation

from its ain observation as to the being, status or value of the object

in inquiry. Although existent grounds may be highly valuable as a agency of

cogent evidence, small if any weight attaches to it unless accompanied by testimony which

identifies the object in inquiry and explains its connexion with, or

significance in relation to, the facts in issue or relevant to the issue.

This is illustrated in the instance of R v Wood ( 1982 ) 76 Cr App R 23 where the

plaintiff in error was convicted of managing stolen metals. In order to turn out that metal

found in his ownership and metal retained from the stolen cargo had the

same chemical composing cross-checking was undertaken and the figures produced

were subjected to a arduous mathematical procedure in order that the per centum

of the assorted metals in the samples could be stated as figures. This was done

by a computing machine operated by chemists. At the test, elaborate grounds was given as

to how the computing machine had been programmed and used. The computing machine printout was non

treated as rumor but instead as existent grounds, the existent cogent evidence and relevancy

of which depended upon the grounds of the chemists, computing machine coder and

other experts involved.

The trouble in the application of this regulation lies in its interaction with the

rumor regulation. Evidence is hearsay where a statement in tribunal repeats a statement

made out of tribunal in order to turn out the truth of the content of the out of tribunal

statement ( Sparks v R [ 1964 ] AC 964 ) . Similarly grounds contained in a papers

is hearsay if the papers is produced to turn out that statements made in tribunal

are true ( Myers v DPP [ 1965 ] AC 1001 ) . The grounds is excluded because the

important facet of the grounds, the truth of the out of tribunal statement ( unwritten or

docudrama ) , can non be tested by cross-examination. ( 1 ) The job, nevertheless,

occurs because some statements, although in signifier assertive and inadmissible if

they were to arise in the heads of human existences, in fact originate in some

strictly mechanical map of a machine and can be used circumstantially to

turn out what they appear to asseverate.

The footing for this position was laid down in a instance holding small to make with

computing machines. In the Statute of Liberty [ 1968 ] 2 All ER 195 a hit occurred

between two vass on the Thames estuary. The estuary was monitored by radio detection and ranging

and a movie of the radio detection and ranging hints was admitted into grounds. Simon P rejected the

statement that the movie was hearsay & # 8211 ; he held that it constituted existent grounds

and non hearsay and he placed it on a par with direct unwritten testimony. Where

machines have replaced human existences, it makes no sense to take a firm stand upon regulations

devised to provide for human existences but instead, as Simon P said & # 8216 ; the jurisprudence is bound

these yearss to take awareness of the fact that mechanical agencies replace human

attempt & # 8217 ; ( at p 196 ) .

This utile differentiation was seemingly overlooked in R V Pettigrew ( 1980 ) 71 Cr

App R 39 where the prosecution wished to turn out that some bank notes found in the

ownership of the accused were portion of a peculiar cargo despatched by

the Bank of England. A computing machine printout was used to turn out this but the Court of

Appeal held that such grounds was inadmissible under the statutory proviso

concerned ( subdivision 1 Criminal Evidence Act 1965 & # 8211 ; now repealed ) . The Court took

the position that the operator did non hold the needed personal cognition of the

Numberss of the bank notes rejected from the machine since they were compiled

wholly automatically by the computing machine. This decision is rather accurate and

a perfect application of the rumor regulation but it failed to see the usage of

the print-out as existent grounds. This confusion between rumor and existent grounds

is unfortunate and it may explicate why it was necessary to make particular regulations

for computing machine grounds.

Condemnable Proceedings

It is imperative that computing machine end product should be readily used as grounds in

condemnable instances since otherwise many instances, peculiarly those affecting

dishonesty, would be immune from prosecution. At the same clip one can non be excessively

complacent about the engineering since computing machines are non infallible. It is widely

acknowledged that & # 8216 ; choping & # 8217 ; and & # 8216 ; viruses & # 8217 ; may impact information stored on a

computing machine. These factors were evidently taken into consideration when ordaining

the commissariats regulating computing machine generated grounds in condemnable proceedings.

( 2 )

Section 69 of the Police and Criminal Evidence Act 1984 provides that:

& # 8220 ; ( 1 ) In any proceedings, a statement in a papers produced by a computing machine shall

non be admissible as grounds of any fact therein unless it is shown-

( a ) that there are no sensible evidences for believing that the statement is

inaccurate because of improper usage of the computing machine and ;

( B ) that at all stuffs times the computing machine was runing decently or, if non,

that any regard in which it was non runing decently or was out of operation

was non such as to impact the production of the papers or the truth of its

contents. & # 8221 ;

In add-on any regulations of tribunal made under subdivision 69 ( 2 ) must besides be satisfied

( at the clip of composing no such regulations have been made ) .

Real grounds and rumor

So far the treatment has focused on exclusions to the rumor regulation. However

grounds derived from a computing machine constitutes existent or direct grounds when it is

used circumstantially instead than testimonially, that is to state when the fact

that it takes one signifier instead than another makes it relevant, instead than the

truth of some averment which it contains. ( 3 )

Direct grounds produced by a computing machine is non capable to the rumor regulation. As we

hold already noted, in R v Wood computations were carried out by a computing machine

specifically for the intent of the test to verify whether the composing of

stolen metals matched original metals. Computer end product was admissible as existent

grounds since it did non purport to reproduce any human averment which had

been entered into it. It was held that the machine was a tool and that in the

absence of any grounds that it was faulty, the printout, the merchandise of a

mechanical device, fell into the class of existent grounds. The tribunal did

recognise, nevertheless, that the spliting line between admissibility of computing machine

generated grounds as existent grounds or rumor would non ever be easy to pull.

The same differentiation and consequence were reached in Castle V Cross [ 1985 ] 1 All ER

87 and in R V Spiby ( 1990 ) 91 Cr App R 186, CA an automatic telephone logging

computing machine which logged the call inside informations without human intercession was admitted

as existent grounds. The Court besides held that, in the absence of grounds to the

contrary, tribunals would assume that such a computing machine was in working order at the

material clip.

Therefore every bit far as the common jurisprudence is concerned the position of computing machine grounds as

existent or rumor will depend, in each instance, on the content of the computing machine record,

the ground for utilizing it in grounds and the manner in which it was compiled. Cases

like R v Wood and R v Spiby, nevertheless, must now be read in visible radiation of the determinations

in R v Shephard [ 1993 ] 1 All ER 225, HL and R v Cochrane [ 1993 ] Crim LR 48, CA.

In R v Shephard the House of Lords held that subdivision 69 PACE 1984 imposes a responsibility

on anyone who wishes to acknowledge a statement in a papers produced by a computing machine

to bring forth grounds that will set up that it is safe to trust on the papers ;

such a responsibility can non be discharged without grounds by the application of the

given that the computing machine is working right expressed in the axiom omnia

praesumuntur rite esse acta ; and it makes no difference whether the statement is

or is non hearsay. In R v Cochrane it was held that before the justice can make up one’s mind

whether computing machine printouts are admissible, whether as existent grounds or as

rumor, it is necessary to name appropriate important grounds to depict

the map and operation of the computing machine. In that instance the prosecution wanted

to turn out that certain hard currency backdowns were made from a peculiar & # 8216 ; cashpoint & # 8217 ; .

The machine would merely distribute money if the right Personal Identity Number

was entered. The matching was carried out by a mainframe computing machine and grounds

of its proper operation was therefore required by the tribunal. The prosecution did

non abduce this grounds and the strong belief was set aside on entreaty.

As we have seen, a printout from a computing machine which has been used as a calculating

device, or which records information automatically without human intercession,

is admissible as existent grounds and involves no inquiry of rumor. ( 4 ) On the

other manus, where the printout contains information supplied to the computing machine by

a individual, it is hearsay if tendered for the truth of what is asserted, but may

be admissible under either subdivisions 23 or 24 of the Criminal Justice Act 1988. A

statement can merely be admitted under subdivisions 23 or s 24 if its shaper ( or the

original provider ) had ( or may moderately be supposed to hold had ) personal

cognition of the affairs dealt with. Furthermore, under subdivision 24 the & # 8216 ; Godhead & # 8217 ;

of the papers must hold been moving in the class of a trade or concern etc.

A statement in a computing machine printout which has satisfied the foundation

demands of subdivisions 23 or 24 can merely be admitted on satisfaction of the

extra demands contained in subdivision 69. ( 5 )

Section 69 is couched in negative footings doing it clear that grounds which does

non fulfill its demands is inadmissible. The object of subdivision 69 is to

enforce a responsibility on anyone who wishes to present a papers produced by a

computing machine to demo that it is safe to trust on that papers and it makes no

difference whether the computing machine papers has been produced with or without the

input of information provided by the human head and therefore may or may non be

rumor ( per Lord Griffiths in R v Shephard at p 228 ) .The operation of subdivision

69, hence, is non limited to printouts that autumn within subdivisions 23 or 24 of

the 1988 Act. ( 6 )


If there is a difference as to the admissibility of a computing machine printout in a

condemnable instance affecting a jury, the justice should keep a voir dire. A party

seeking to acknowledge a printout under subdivision 24 ( or subdivision 23 ) must set up the

foundation demands of both that subdivision and subdivision 69. The justice, in

make up one’s minding whether the prosecution has established these demands, should

use the condemnable criterion of cogent evidence. ( 7 ) Although, as we shall see, the

extra demands of subdivision 69 can be proved by certification, the

foundation demands of subdivision 24 ( or subdivision 23 ) must be proved by grounds

unless the other party makes admittances or allows the statement to be read.

There is besides a 3rd common jurisprudence demand, before the justice can make up one’s mind on

admissibility, viz. that appropriate important grounds must be adduced to

depict the map and operation of the computing machine ( eg R v Cochrane ) .

In R v Governor of Pentonville Prison ex P Osman [ 1989 ] 3 All ER 701 it was

argued that printouts were inadmissible because the prosecution had failed to

turn out the proper operation of the computing machines required by subdivision 69. However

Lloyd J held that & # 8220 ; where a drawn-out computing machine end product contains no internal grounds

of malfunction & # 8230 ; it may be legitimate to deduce that the computing machine which made the

record was working right & # 8221 ; ( at p 727 ) .

In R v Shephard the House of Lords held that it will really seldom be necessary to

name an expert to turn out that the computing machine is dependable. The suspect was charged

with larceny from a shop. A shop investigator gave grounds that she had examined

all the boulder clay rolls for the relevant twenty-four hours from the boulder claies, which were linked to a

cardinal computing machine, and that they contained no record of the alone merchandise codification

for some goods found in the suspect & # 8217 ; s ownership. She besides said that there had

been no problem with the cardinal computing machine. On entreaty it was argued that the

grounds did non fulfill subdivision 69 since unwritten grounds that the computing machine was

runing decently is non admissible unless given by a individual qualified to subscribe

the certification under parity 8 ( vitamin D ) of Schedule 3 which provides that:

& # 8220 ; In any proceedings where it is desired to give a statement in grounds in

conformity with subdivision 69 above, a certification – & # 8230 ; . ( vitamin D ) purporting to be

signed by a individual busying a responsible P

osition in relation to the operation

of the computing machine, shall be grounds of anything stated in it ; and for the

intents of this paragraph it shall be sufficient for a affair to be stated to

the best of the cognition and the belief of the individual saying it. & # 8221 ;

Dismissing the entreaty, it was held that subdivision 69 can be satisfied by the unwritten

grounds of a individual familiar with the operation of the computing machine who can give

grounds of its dependability and need non be a computing machine expert. Lord Griffiths

said that:

& # 8220 ; Computers vary vastly in their complexness and in the operations they perform.

The nature of the grounds to dispatch the load of demoing that there has

been no improper usage of the computing machine and that it was runing decently will

necessarily vary from instance to instance. I suspect that it will really seldom be

necessary to name an expert and & # 8230 ; in the huge bulk of instances it will be

possible to dispatch the load by naming a informant who is familiar with the

operation of the computing machine in the sense of cognizing what the computing machine is required

to make and who can state that it is making it properly. & # 8221 ;

This attack was adopted in Darby V DPP The Times 4 November 1994. The

plaintiff in error had driven her auto into an country of route topic to a 30 miles per hour velocity

bound. At that point a constabulary velocity trap was being operated. A constabulary officer

was runing a device known as a GR Speedman and he concluded that the

plaintiff in error had exceeded the velocity bound by driving at 43 miles per hour. It was submitted

that the grounds of the reading of the GR Speedman was inadmissible if it was

held to represent a papers. It was besides contended that the grounds of the

readout required enfranchisement and that, whilst unwritten grounds of enfranchisement

would be admissible, the constabulary officer could non give such grounds as he was

non an expert in the workings of the machine, merely its operation.

Potts J adopted the attack of Lloyd LJ in the Shephard instance and assumed that

the machine was a computing machine and that the ocular image was a papers produced by

a computing machine. He besides referred to the rule enunciated in Lord Griffiths & # 8217 ;

address above and consequently found no job in keeping that, on the footing of

the grounds of the constabulary officer, who was a trained and experienced operator

of the device, the machine was working right. The entreaty was accordingly


Therefore it seems that the commissariats in subdivision 69 are capable of being applied

without undue trouble. However, it is interesting to observe that Rose LJ

pointed out that if the GR Speedman had been cardinal to this instance and if it had

produced a printout on which the prosecution had relied so it may good hold

been caught by subdivision 10 ( 1 ) ( degree Celsius ) ( 8 ) of the Civil Evidence Act 1968 ( subdivision

118 ( 1 ) of PACE 1984 provides that a & # 8216 ; papers & # 8217 ; within that Act has the same

significance as in Part I of the CEA 1968 ) . This would hold meant that as a papers

within the significance of subdivision 10 ( 1 ) ( degree Celsius ) it would hold constituted a papers

necessitating enfranchisement within the significance of subdivision 69 and the footings of parity 8

of Sch 3. But it was the constabulary officer & # 8217 ; s sentiment grounds which was cardinal to

the instance and that was capable of being corroborated by a proficient device, the

truth of which had been established. Thus it appears that the conditions for

admissibility for computing machine end product in a condemnable instance are less demanding if the

grounds provided by the machine is simply collateral.

The ambiguities and illogicalness originating from the complex conditions for

admissibility of computing machine grounds can clearly be seen in the recent instance of

McKeown V DPP [ 1995 ] Crim LR 69 where the Divisional Court held that if it

can non be proved that the computing machine was runing decently the computing machine grounds

will be inadmissible. This flies in the face of Lloyd LJ & # 8217 ; s pronouncement in the Osman

instance since the decision was reached despite the fact that grounds showed that

the malfunction did non impact the truth of the information. The instance

concerned an entreaty by Miss McKeown against her strong belief for drive after

holding consumed so much intoxicant that she was over the legal bound reverse to s

5 ( I ) ( a ) of the Road Traffic Act 1988 and Sch 2 of the Road Traffic Offenders Act


The appellate underwent a breath trial utilizing the Lion Intoximeter 3000 breath

proving device. This machine has a ocular show and a memory which shops a

figure of consequences. Four printouts were produced by the machine and these were

certified by the officer in charge in conformity with s 69 PACE. On his

statement the officer recorded the clip shown on his ticker as the machine was

13 proceedingss out. The entry of the plaintiff in error was that the ocular

shows and printouts were inadmissible on the footing that since the timing

device was 13 proceedingss slow it could non be shown harmonizing to s 69 ( 1 ) ( B )

& # 8216 ; that at all stuff times the computing machine was runing decently, or if non, that

any regard in which it was non runing decently or was out of operation was

non such as to impact the production of the papers or the truth of its & # 8217 ;

contents & # 8217 ; . On behalf of the respondent it was argued that the words & # 8216 ; to a

stuff grade & # 8217 ; should be read into the statutory proviso and that the

wrong timing did non in itself render the grounds from the machine de facto


Dr Williams, a manager of the research labs who supplied the breath proving

machine, had been called as an adept informant on behalf of the prosecution. It

was held that although he was non an electronics expert his makings and

experience entitled him to give grounds in regard of the machine. The tribunal

accepted his grounds that the working and truth of the breathalyzer was non

affected in anyhow by the clock. However, despite these findings the tribunal took

the position that there was substance in the plaintiff in error & # 8217 ; s entry that on the

diction of s 69 ( 1 ) ( B ) the inaccurate timing mechanism on the machine rendered

the print outs produced by it inadmissible. The entreaty was allowed and

strong belief quashed entirely on the footing that, despite the grounds, the

prosecution could non turn out that the machine was working decently. The result,

although in line with the statutory demands of subdivision 69 ( 1 ) ( B ) , is rather

absurd since there was no inquiry as to the dependability of the grounds.

The McKeown instance besides gives rise for concern in that the defense mechanism raised the

smoke-screen of concentrating on the fallibility of the computing machine grounds instead

than the dependability of such grounds. This point was raised by Dr Castell when

he delivered The VERDICT Report to the Treasury in 1987. ( 9 ) He was perturbed

that the current jurisprudence could be efficaciously exploited by defense mechanism advocate to

sabotage a prosecution. The Law Commission in its Consultation Paper ( Law Com

CP No 138 ) claim that there is support for this contention in that Judgess

commented on the drawn-out cross-examination of prosecutions & # 8217 ; computing machine experts. It

will be recalled that the criterion of cogent evidence in a condemnable instance for grounds

tendered by the prosecution is & # 8216 ; beyond all sensible uncertainty & # 8217 ; . The elaborateness and

complexness of many modern computing machine systems may do it comparatively easy to

set up a sensible uncertainty in the juryman & # 8217 ; s mind as to proper operation of the

computing machine. Using the illustration of the McKeown instance it appears that in the absence

of a given that the computing machine is working agencies that it may be rather easy to

raise such a fume screen. It would look absolutely executable that where there are

uncertainties as to the dependability of computing machine generated grounds these uncertainties should

non travel to the issue of admissibility but instead to the weight of the grounds.

As we have seen in Shephard s 69 merely applies where computing machine generated paperss

are tendered in grounds and there is an affirmatory responsibility on those presenting

computing machine grounds to demo that at all times it is safe to trust on it. Therefore when

using a actual reading of the statutory proviso illogicalness and

confusion reigns as demonstrated by the McKeown instance. Furthermore it has been

held that s 69 does non use where a informant uses computing machine generated grounds

to review his or memory nor where it is used by an expert to make a decision.

In Sophocleous V Ringer [ 1988 ] RTR 52, another driving with extra intoxicant instance,

grounds was given against the accused by an analyst who had used a computing machine

which produced a graph exemplifying the degrees of intoxicant in the blood watercourse.

The graph was non put in grounds but the analyst was allowed to look at it to

review her memory. As the graph had non been put in grounds the tribunal held

that s 69 did non use.

The same result is illustrated in a recent Court of Appeal instance, R V Golizadeh

[ 1995 ] Crim LR 232. In this instance a brown substance was found in the ownership

of the plaintiff in error which turned out to be a Class A drug ( opium ) . The susbstance

was analysed through a machine which produces a print out in the signifier of a

form ; this form is so interpreted by an expert to find the chemical

components of the substance. In geting at his decision that the substance

was so opium the expert informant relied on his ain reading of the

print out and the sentiment of another expert called to give grounds.

One land of entreaty was that under s 69 PACE the grounds should hold been

excluded on the footing that it was based on the computing machine print outs and was

hence inadmissible. The Court of Appeal rejected this statement and held that

s 69 did non use. Morland J reiterated Lord Griffith & # 8217 ; s address in the Shephard

instance whereby he stated that the object of s 69 & # 8220 ; requires anyone who wishes to

introduce computing machine grounds to bring forth grounds that will set up that it is

safe to trust on the paperss produced by the computing machine & # 8221 ; . Thus it is clearly the

instance that s 69 will merely use where computing machine print outs are really put in

grounds. Since in the present instance the print outs had simply been used by the

experts in making their findings as to the chemical components of the

substance s 69 had no application on the facts of the instance. In the words of the

Law Commission in its recent Consultation Paper & # 8220 ; if it is safe to acknowledge grounds

which relies on and incorporates the end product from the computing machine, it is difficult to see

why that end product should non itself be admissible & # 8221 ; ( Law Com CP No 138, para 14.13 ) .

The sarcasm of the state of affairs is that it appears absolutely acceptable for grounds

to be adduced which is based on computing machine generated print outs but at the same

clip if the computing machine grounds itself was to be presented to the tribunal so the

hurdle of following with s 69 would hold to be surmounted.

Are the particular commissariats necessary?

As we have seen, the statutory commissariats impose particular conditions on the

admissibility of computing machine end product. Are these justified? What is it that is

particular about computer-generated paperss and that distinguishes them from

their paper equivalents? It is obvious from scrutiny of the admissibility

demands that computing machine grounds is regarded as leery in several

respects The chief job is concerned with the hallmark and truth of

computing machine records. It is about as if the engineering is believed to be inherently

inaccurate. ( 10 ) Section 69 PACE requires some minimal cogent evidence of truth before

the papers is admissible. The tribunal must be satisfied of the dependability of

the statement as a true record of what the informant observed and besides of its

genuineness as an accurate record of what was intended to be recorded. As a

consequence it is necessary to demo that at all stuff times the computing machine had been

working decently, or at least that any malfunction had non affected the

truth of the information.

It was envisaged by the Criminal Law Revision Committee ( CLRC 1972, para 259 )

that there would be many instances where the papers might hold become corrupted by

package mistakes or hardware malfunctions. It is the contention of this article

that this intuition was likely baseless on the footing that there has been has

been no touchable grounds to day of the month exemplifying why computing machine records are likely

to be less accurate than those contained on paper. Paper based records are besides

susceptible to change and impairment yet, where it is alleged that such

change has taken topographic point, the paper papers remains admissible and the

challenge goes to the inquiry of its weight as grounds, to be decided on the

footing of the grounds called to turn out disproof or hallmark.

Sing documental grounds para 3 of Schedule 2 to the Criminal Justice Act

1988 provides that:

& # 8220 ; In gauging the weight, if any, to be attached to & # 8230 ; a statement [ given in

grounds under subdivision 23 or subdivision 24 ] respect shall be had to all the

fortunes from which any illation can moderately be drawn as to its

truth or otherwise & # 8221 ; .

Although no peculiar fortunes are specified, it seems safe to presume that

respect may be had, for illustration, to the undermentioned affairs: whether the individual who

made the statement in a papers did so contemporaneously with the happening or

being of the facts dealt with in the statement ; whether any individual who

supplied the information did so contemporaneously with the happening or

being of the facts dealt with in that information ; and whether or non such

individuals or the & # 8216 ; Godhead & # 8217 ; of the papers incorporating the information had any

inducement to hide or belie the facts.

In blunt contrast to this, unless it can be shown that there is no opportunity of

unauthorized usage of a computing machine system, or of system failure, the same papers

stored on computing machine is inadmissible under the extra demands of subdivision

69 PACE ( eg McKeown v DPP ) .

Doubts refering the truth of information recorded on computing machines apply

every bit to paper-based systems, as do those refering hallmark. As with

paper records, the necessary grade of hallmark can be proved through unwritten

and circumstantial grounds, if available, or via technological characteristics of the

system or record. ( 11 ) Although a paper papers can be authenticated by its

writer add oning a signature, assorted proficient ways of authenticating degree Celsius