Saturday, August 13, 2016

Admissibility of Computer Evidence in Criminal Proceedings

Admissibility of Computer Evidence in Criminal Proceedings
The article *‘Admissibility of Computer Evidence in Criminal Proceedings’ was originally produced back in 1998 and appeared in a publication produced Professor David Bainbridge, Aston University, relating to intellectual property and computer evidence.

After the 1998 article was written changes took place in **law. These changes related hearsay evidence and presumption of a computer operating properly at the material time. In an article “written for a law magazine by Professor Graham Robertson ICAF (now deceased) and me, we discussed the merits the repeal might have impact regarding evidence. We noted:

“However, with rapid advances in computer technology have made Section 69 an increasingly difficult hurdle, primarily for the Prosecution to overcome. In a Report, No. 245, produced by the Law Commission on recommendations on "Hearsay Evidence" about computer material it raised the proposition that computers should be accepted in evidence, as a natural presumption, that they are operating properly at the material, thus recommending repeal of S69 Police and Criminal Evidence Act (PACE) 1984.
“On the 14th April 2000 the legislation necessary to remove the requirement for computer certification was implemented by virtue of Section 60 Youth Justice and Criminal Evidence Act 1999. The effects of this implementation, apparently it brings computer evidence into line with evidence from mechanical sources such as traffic lights and speedometers.”

The purpose of reproducing ‘Admissibility of Computer Evidence in Criminal Proceedings’ is that comments and conclusions stated in the article back in 1998 have in part resurfaced in 2013 as noted in the following materials.....

The extent to which the later 2013 discussions might have impact or introduce change about ‘hearsay evidence’ and ‘presumption’ about computers could require a more in-depth analysis of the impact of cybercrime attacks reported on networks and computers that have soared in recent years and occur virtually on a daily basis in 2016.

Governments around the world have spent many millions of pounds/euros/dollars in financing law enforcement departments and purchasing hi-tech equipment to combat cybercrime and for capturing evidence from networks and computers, the target victims of cybercrime. In the UK, by virtue of the fact the Government acknowledge networks and computers may be compromised, contaminated and unreliable, this position might be difficult (indeed, even be untenable) to reconcile with Statutory law provisions where the Government and Legislature have directed Courts of Law to presume networks and computers are reliable and that hearsay evidence should be allowed on that basis.

Indeed, most law enforcement websites now offer advice about cybercrime, further underpinning the change to the technology landscape that was not around when s.69 PACE was repealed.

Cybercrime might well turn out to be the technology cause that brings about a re-think for the re-introduction of s.69 PACE 1984 or similar legislation with respect to evidence obtained from networks and computers. That might be because back in 1999 when the computer was said to be working properly at the material time or if not would be down to network faults, software glitches or hardware failure in computers etc., it was presumed not to impact on data (evidence) that might be recorded and stored.

However, attacks on varying network protocol layers, malware, ransomware, Cryptovirology etc. weren’t (or were not as much) prevalent back in 1999 and thus would have had a significantly less influence during repeal of s.69 PACE 1984. Had that debate occurred today, of course, it may well be that an entirely different outcome would be reached.

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