I mentioned in the thread " Mobile Phone is not a 'Closed Container' " that there was more to this disucssion:
When any digital exhibit produces evidence it is normally presented in a computer document format. The Courts looks at the defendant's behaviour in relation to the data shown in the record.
The categories said to underpin S129 Criminal Justuce Act 2003 are set out in Archibold 2010:
i) The first is where the computer has been used simply as a calculator to process information.
ii) The second category is information which the computer has been programmed to record.
iii) The third category is information recorded and processed by the computer which has been entered by a person, whether directly or indirectly. It is only information from a computer in this third category which is hearsay.
It is Category II (Cat 2) which it is being said that a mobile phone is a dumb terminal which when plugged in is instructed simply to print out, yet examination of the case law used to reference Cat2 does not support the actions of what happens when examinations are conducted on mobile phones.
Category III (Cat 3) is relevant as it covers the multitude of actions that occur from the time the mobile phone is first seized to the time, in the chain of custody, the mobile phone examiner completes his/her examination. Funnily enough it is the mobile phone examiner who is unfairly prejudiced here because it most cases any actions conducted on the mobile phone prior to reaching the moible phone examiner sets him/her up for a dished up fait accompli. That is because phones do not have a specific application creates an audit trail to record all activity of when, for instance, deletion takes place or the person causing that to happen.
- At the point of seizure - entering *#06# (technically that is asterisk* octothorp# 0 6 octothorp#). Then mistakenly pressing the go key with added or deleted entries to the phone memory call history.
- Using faraday bags for sitched on at seizure where the world and his wife can punch away on the keypad of the handset with no traceability and auditability of what has gone on. The exmainer simply cannot be sure where the data comes from.
- the pressing of speed dial keys the place entries in call history.
- opening unread text messages.
With the above examples in mind, what does the Statute set out:
129. Representations other than by a person
(1) Where a representation of any fact -
(a) is made otherwise than by a person, but
(b) depends for its accuracy on information supplied (directly or indirectly) by a person,
the representation is not admissible in criminal proceedings as evidence of the fact unless it is proved that the information was accurate.
(2) Subsection (1) does not affect the operation of the presumption that a mechanical device has been properly set or calibrated.
Mobile telephones are not simple mechnical devices and are not calibrated, after leaving the factory originating their maunfacture, and are not calibrated prior to securing data from them for evidence. When some much goes unchecked with the evidence and the chain of custody can prove quite difficult to establish, how can behaviour in relation to the data be established with proper and appropriate procedual paths in place? The current system is unnecessarily and unwarrantedly crude in its operation demonstrates the lack of necessary skillsets.
I should imagine those in quality assurance (QA) promoting the merits of ISO9000, ISO17020 and ISO17020 are hampered to a greater degree (and most likely apoplectic at this stage) finding out where the difficulties exist. Whilst these standards are excellent (and I do have respect for them) for identifying each stage-point that needs to be reached so that assessment can be conducted to confirm conformity, they have no application to generating the criteria to build each stage-point given the issues associated with Cat 3 S129 CJA2003, above.
There is a way forward though.