Digital Evidence & Disclosure – New Considerations for the Defense
Digital Evidence & Disclosure – New Challenges for the Defence
The capacity of digital devices to store vast amounts of information presents issues for law enforcement and prosecutors. Over the last few years we have seen many instances of non-disclosure of key evidence, and at the same time victim advocates have complained that police investigations are overly intrusive and act as a deterrent to people coming forward and reporting a crime, particularly sexual offences, as they fear the intrusion into the more intimate aspects of their lives.
This week the Court of Appeal considered this issue further and identified four key points of principle, this new case law will present challenges when defending some allegations, and you can be assured that all members of our team are fully conversant with this new and developing legal landscape.
The First Issue of Principle
‘Identifying the circumstances when it is necessary for investigators to seek details of a witness’s digital communications. These are usually, but by no means always, electronic exchanges conducted by way of multiple platforms on smart mobile telephones, tablets or computers. These platforms are so numerous that it is pointless to attempt to list examples. In essence, the question in this context is when does it become necessary to attempt to review a witness’s digitally stored communications? The linked question is when is it necessary to disclose digital communications to which the investigators have access?’
The court issued the following guidance:
“There is no obligation on investigators to seek to review a witness’s digital material without good cause. The request to inspect digital material, in every case, must have a proper basis, usually that there are reasonable grounds to believe that it may reveal material relevant to the investigation or the likely issues at trial (“a reasonable line of inquiry”).”
“It is not a “reasonable” line of inquiry if the investigator pursues fanciful or inherently speculative researches. Instead, there needs to be an identifiable basis that justifies taking steps in this context.”
“The ease with which this material is now accessible does not make it more susceptible to scrutiny than would have been the case if it was only available in hard copy. It is necessary to state this obvious point because there is a misconception, that is possibly widespread, that certain types of criminal allegations – most particularly those that are sexual in nature – ipso facto result in the right to automatic and unfettered access by investigators to the complainant’s digital information. This is assuredly not the case.”
“In conclusion on the first issue, and answering the question: “when does it become necessary to attempt to review a witness’s digitally-stored communications and when is it necessary to disclose digital communications to which the investigators have access?”, we stress that regardless of the medium in which the information is held, a ‘reasonable line of enquiry’ will depend on the facts of, and the issues in, the individual case, including any potential defence. There is no presumption that a complainant’s mobile telephone or other devices should be inspected, retained or downloaded, any more than there is a presumption that investigators will attempt to look through material held in hard copy. There must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation. Furthermore, as developed below, if there is a reasonable line of enquiry, the investigators should consider whether there are ways of readily accessing the information that do not involve looking at or taking possession of the complainant’s mobile telephone or other digital device. Disclosure should only occur when the material might reasonably be considered capable of undermining the prosecution’s case or assisting the case for the accused.”
The Second Issue of Principle
‘When it is necessary, how should the review of the witness’s electronic communications be conducted?’
The court issued the following guidance:
“If a reasonable line of inquiry is established to examine, for example, communications between a witness and a suspect, there may be a number of ways this can be achieved without the witness having to surrender their electronic device. The loss of such a device for any period of time may itself be an intrusion into their private life , even apart from considerations of privacy with respect to the contents. Thus the investigator will need to consider whether, depending on the apparent live issues, it may be possible to obtain all the relevant communications from the suspect’s own mobile telephone or other devices without the need to inspect or download digital items held by the complainant. The investigator, furthermore, can potentially review the relevant social media posts of the complainant without looking at the individual’s mobile telephone, provided he or she is willing to provide a password. Consideration should, therefore, be given to whether all the relevant messages or other communications in this context are available on the suspect’s digital devices, within the witness’s social media accounts or elsewhere, thereby potentially avoiding altogether the need for recourse to the witness’s mobile telephone etc.”
“If material on the complainant’s device needs to be reviewed as part of a reasonable line of enquiry, an important question is whether a review of a discrete part of the digital record will suffice. Indeed, it may be unnecessary to ask the witness to surrender the device or to facilitate a digital download. Instead, putting focussed questions to the witness together with viewing any relevant digitally recorded information, and taking screen shots or making some other suitable record, may meet the needs of the case.”
“In conclusion on the second issue and answering the question: “how should the review of the witness’s electronic communications be conducted?”, investigators will need to adopt an incremental approach. First, to consider with care the nature and detail of any review that is required, the particular areas that need to be looked at and whether this can happen without recourse to the complainant’s mobile telephone or other device. Second, and only if it is necessary to look at the complainant’s digital device or devices, a critical question is whether it is sufficient simply to view limited areas (e.g. an identified string of messages/emails or particular postings on social media). In some cases, this will be achieved by simply looking at the relevant material and taking screenshots or making some other record, without taking possession of, or copying, the device. Third, if a more extensive enquiry is necessary, the contents of the device should be downloaded with the minimum inconvenience to the complainant and, if possible, it should be returned without any unnecessary delay. If the material is voluminous, consideration should be given to appropriately focussed enquiries using search terms, a process in which the defendant should participate. It may be possible to apply data parameters to any search. Finally, appropriate redactions should be made to any disclosed material to avoid revealing irrelevant personal information.”
The Third Issue of Principle
‘What reassurance should be provided to the complainant as to ambit of the review and the circumstances of any disclosure of material that is relevant to the case?’
The court issued the following guidance:
“The complainant should be told i) that the prosecution will keep him or her informed as to any decisions that are made as to disclosure, including how long the investigators will keep the device; what it is planned to be “extracted” from it by copying; and what thereafter is to be “examined”, potentially leading to disclosure; ii) that in any event, any content within the mobile telephone or other device will only be copied or inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations; and iii) material will only be provided to the defence if it meets the strict test for disclosure and it will be served in a suitably redacted form to ensure that personal details or other irrelevant information are not unnecessarily revealed (e.g. photographs, addresses or full telephone numbers).”
The Fourth Issue of Principle
‘What is the consequence if the complainant refuses to permit access to a potentially relevant device, either by way of “downloading” the contents (in reality, copying) or permitting an officer to view parts of the device (including, inter alia, copying some material, for instance by taking “screen shots”)? Similarly, what are the consequences if the complainant deletes relevant material?’
The court issued the following guidance:
“It is important to look carefully at the reasons for a refusal to permit access and to furnish the witness with an explanation and reassurance as to the procedure that will be followed if the device is made available to the investigator. If it is suggested that the proceedings should be stayed, the court will need to consider the adequacy of the trial process, and whether this will ensure there is fairness to the defendant, particularly by way of cross-examination of the witness, coupled with appropriate judicial directions. The court should not be drawn into guessing at the content and significance of the material that may have become unavailable. Instead, the court must assess the impact of the absence of the particular missing evidence and whether the trial process can sufficiently compensate for its absence. An application can be made for a witness summons for the mobile telephone or other device to be produced. If the witness deletes material, although each case will need to be assessed on its own facts, we stress the potential utility of cross-examination and carefully crafted judicial directions. If the proceedings are not stayed and the trial proceeds, the uncooperative stance by the witness, investigated by appropriate questioning, will be an important factor that the jury will be directed to take into account when deciding, first, whether to accept the evidence of the witness and, second, whether they are sure of the defendant’s guilt.”
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