Evidence and Admissibility Part 1

Evidence and Admissibility Part 1

The analysis that can never stop relates to issues associated with evidence and admissibility. We need thought provoking discussions to inform our knowledge. Also, we need to exercise our understanding of the work we are doing and whether it meets an acceptable criteria in the practices and procedures we follow. Moroever we should challenge perceptions we hold to discover where things could go wrong and make revelation of them to see how best they can be put right.

The discussion below contains references to Statutory Law and Case Law. I am not legally qualified and do not hold myself out to be giving legal advice. The legal references that have been used are there to help identify requirements that are in place or to merely demonstrate an interpretation.

STATEMENTS, TOOLS & PROCEDURES
The independence, objectivity and impartiality of a witness or expert can only be seen if each are responsible for producing their own research, analysis and reports and their own exhibits and the content in them unfettered from control by others who are not giving the evidence. Problemical is that any desire to achieve these laudable principles can be thwarted due to deficiencies in the system.

Using mobile phone examination tools to acquire data, that data maybe subjected to the limited capability of the tool that extracted the data in the first place from the target device (the "exhibit"). The accuracy of the harvested data can again have limitations if the tool that extracts data is equally set to work to translate the data. Most of 'the' tools do this. When I put the word 'the' in parenthesis I do so because I am of course referring to mobile phone tools and not every tool. Notwithstanding the aforementioned limitations, a further limitation can occur from which a tool outputs the data into datafields. This largely leaves the examiner to believe, any data that does not appear or cannot fit into a datafield, it is not (worthy) evidence for inclusion and doesn't get served. Extracted data that are not the subject of translations remains in a raw state in the electronic file and doesn't get served. If the examiner doesn't know what data to look for or does not understand the relevance of the data this too can contribute to evidence not seeing the light of day. If this is not revealed in the report/statement, and left unchallenged, it corrodes the principles and right to fair trail by diluting revelation in the criminal justice system.

It can also be the case that where the report/exhibit design and datafields for cell site analysis evidence are predefined and examiners/experts are told the format they must follow, again this leads to corruption of the principles mentioned at the outset. If the format is predefined it causes the examiner/expert to look only at a certain set of criteria and only the data for that criteria; other data that should have been considered gets ignored, and again does not see the light of day. Furthermore, it prevents the examiner/experts from corroborating facts prior to disclosure.

What observations might be drawn from the views above? One observation might be to look at the Industry Standards, Technical Standards (GSM/3GPP, ETSI/ITU/ISO, proprietory, etc) and QA Standards (ISO etc) to determine discovery and revelations that should be made. For instance, using the example of the proposed QA Standards of ISO17025 and ISO17020 the principles in them are drawn from ISO9000, an international QA Standard having principles in it that originated from the British QA Standard BS5750. So there is as an historical reference and appreciation to be aware that Britain is fully aware of using a quality approach when dealing with 'technical' material and the importance of its revelation. However, the different between ISO17025/ISO17020 and ISO9000/BS5750 is that the former are said to be directly applicable for forensic evidence where as the latter have never been directly applicable for forensic evidence, but have often been suggested as achieving a criteria sufficient for evidence.

More importantly, to this discussion, would the tools used for examination fail the crietria set out in ISO17025 and ISO17020? An example to look at might be the QA criteria relating to "non-conforming" product. If the examination tool does not possess the capability to know if the product (the "exhibit") is non-conforming or by use of that tool it introduces non-conformance into the product (the "exhibit"), then the tools output may fail the test. The analysis of the failure thus requires to be determined: to define whether the coding in the tools have been written incorrectly or the coding incorporates commands of a generic nature - meaning device-specific commands may not have been considered or used? The latter might cause data changes residing in the handset. Changes to data and failure to reveal that prior to disclosure undermines the discovery to be understood about served data and can affect a tribunal's understanding of the "defendant's behaviour in relation to the data" (s129 CJA (Criminal Justice Act) 2003). Under s69 of the Police and Criminal Evidence (PACE) Act 1984 (repealed) that occurrence would have been less likely because s69 compulsorily required prior consideration and affirmation before admissibility and allowed transparency upto the point that enabled probative enquiries and tests of the system (in some cases) to seek validation about a system's performance.

Evidence submitted in the past (pre s69 PACE repeal) came with a meaningful statement that was naturally attached with the evidence; post s69 PACE there is no equivalent technical statement of any compliance whatsoever, unless it is voluntarily made but simply not referenced to s69. When such a statement in the past was made it contained references to affirming the position required by s69 PACE 1984 as to the operation of the computer/s and affirmation (certificate) required by other provisions.

One might be forgiven for thinking the Police when they present evidence are excluded from making at least some declarations about the operational performance of their computer/s and program/s generating evidence. They are not excluded from doing so, there is simply no enforcement to include good QA declarations in their statements/reports about evidence they generate - whether obtained from mobile phones, computers, CCTV/Video and so on. In contrast, currently mobile operators producing billing records etc (served as evidence generated from a computer and program/application) still make a QA reliability statement that the computer that generated the evidence operated properly and if not it would not as such cause alteration to the state of the business record (data). So why shouldn't the Police and examiners make the same statements? Afterall they do use computers and programs to extract and harvest data from an exhibit and it is that data from the computers that the court sees.

CONTROLING REVELATION
The discussion, having dwelt on the subject of identifying some aspects of limitations that can occur with examiner skillsets, flawed tools, contaminated evidence, conflicts with standards and lack of appropriate procedural requirements, there are still the issues of 'control' of revelation as to how evidence is presented and what might influence that to happen?

Where examiners are forced to extract, harvested, examine and report evidence with preset requirements for revelation that may not fully corroborate "behaviour" when compared with the data that has been revealed under any enforced procedure, it may amount to undue preference or undue discrimination. The words 'preference' and 'discrimination' do not attract prohibition. Instead, the emphasis is on 'undue', which in dictionary terms can mean "improper", "unreasonable" and, in particular, "excessive". That emphasis might be applicable where commercial contracts, such as public sector contracts for the employment of outsourced services occurs that may have legal requirements, either express or implied, associated with them, that require the contracted party to use discrimination when revealing data by predicting only particular data to be available and be served (disclosed).

The matters of undue preference and undue discrimination have been dealt with by the House of Lords previously. Lord Keith and Lord Merriman outlined definitions in two separate actions involving the same case - South of Scotland Electricity Board -v- The British Oxygen Company - that concerned disputes with the provision of costs and supply of electricity as to how the meaning of 'undue' may have influence. These cases may provide useful pointers where controlled evidence is being used. Lord Keith in the first action ( [1956] 1 W.L.R. 1069 ) stated that the word "undue" encompassed not only illegitimate reasons but could also mean "excessive". In the later action ( [1959] 2 All E.R. 225 ) Lord Merriman addressed the matter in three parts. The first is use of the phrase "shall not exercise any undue discrimination" had to be considered as a whole. Secondly, making reference to objectives he identified "a fair distribution of the cost of supplying electricity as between one class of users and another is not to be left out of consideration any more...." followed by the use of the incisive comments for the third part "....'than any other circumstance which would affect mens' minds."

If the above principles are applied to evidence, then it would suggest the need to re-instate encumbent obligations (like s69 PACE) requiring performance of fair acquisition of data and fair distribution of evidence for delivery to a class of users (eg the Courts, Prosecution and Defence) and to protect against blind-siding and stumbling blocks that may cause undue discrimination. In addition, public sector contracts may well benefit from containing a contractual clause protection mechanism to enable the immediate use of the law to act as a 'shield and not a sword' when a penalty is threatened or issued against the outsourcer where the outsourcer has identified that the data under the schedules supporting the contract does not permit other important data to be incorporated into the datafields of the template that is being enforced to be used, thus prevents revelation. Such omission of data prevents the Prosecution from meeting their obligations under the Golden Rule enunciated by the noble Lord, Lord Bingham in the case of R .v. C & H (February 2004) to conduct a fair risk assessment when in possession of all the evidence and the facts in order to determine the risk, if any, that the evidence poses. The impeccable logic behind the requirement: if there is fundamental misunderstanding about the evidence and there are too many twist and turns being used to skew the path to appropriate discovery and revelation, that may interfere with others (who are not technical) in allowing them to meet their duty required by the statutory provisions, e.g. s9(2) Criminal Procedures and Investigations Act 1996?

UK Criminal Evidence Delays

UK Criminal Evidence Delays
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Due to delays in passing evidence to the defence certain building blocks of evidence used against a defendant are not being held by the prosecution, but worst still, the expert who obtains, for instance the tests and results, holds on to them because they claim their client (the Police) haven't made that a term of the instructions to pass them over. The police say they don't need to have it because the expert hasn't said it's necessary so they wont ask for it.
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So what makes me and others think that we should expect, as a requirement, all the mobile telephone/cell site analysis evidence upfront from the prosecution and why do we think, as a requirement, the prosecution have a lawful duty to have obtained all the evidence from their expert, in order to meet the first requirement?
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It is the lawful duty, so we are told, of the prosecution to look at, examine and retain a copy of all evidence (e.g. tests and results) and to conduct an assessment of risk, which is the principle enunciated in the "Golden Rule" by none other than Lord Bingham.
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Examiners/Experts at common law are no longer entitled or permitted to arbitrarily withhold any evidence from their work in a case but are required to produce to the prosecution an index of all used and unused material they are holding which should replicate the actual physical copy of evidence given to the prosecution. So for a case involving mobile telephone/cell site analysis that would mean:
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1) written instructions of work to be undertaken
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2) call records/subscriber details
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3) cell site details and data
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4) GPS/CCTV evidence
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5) handset/SIM (USIM) data and report
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6) copy of the actual radio test measurement results obtained at site and presented in a visible, legible and intelligible format (with the electronic file of the original radio test measurements to accompany them)
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7) copy of the expert's analysis of the results, report and any supporting exhibits
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8) copy of written questions to and written responses from the mobile network operator
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9) material considered and unused material and/or material disgarded as not relevant
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.......and so on.
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This enables the prosecution to sit down and examine what is on file put before them by the examiner/expert (usually the data can be recorded onto a CD costing less than £1.00) and all the material on CD and/or in paper form are identified on a tick sheet. The prosecutor/prosecution should then avail him/herself/themselves of the knowledge of that material by familiarisation with the information on the CD and/or in paper form. As some information may not be readily understood the examiner/expert should be called (by phone, written or in a meeting) to explain material or information not understoood. The risk assessment can then be made.
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It is equally understood that the right of the defence to investigate the evidence held against a defendant was and is to stop cases being brought against anyone where evidence was being withheld, in a deliberate or clandestine fashion, in order to meet the principles of ECHR (Foucher v France). No evidence on file can be withheld from a defendant and no steps should be taken to find mechanisms to avoid holding or hiding evidence from the defendant. For the avoidance of doubt, I am not referring to public interest immunity (PII) information, which is another matter entirely.
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So it is easy to see the principles enunciated by Lord Bingham in the Golden Rule contain impeccable logic and foresight. The Golden Rule requires the prosecution to logically assess that it has a complete copy of the evidence e.g. tests and results and if they were not held by the prosecution:
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A) How would it be possible for the prosecution to conduct a risk assessment without the full evidence made available to them from their examiner/expert?
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B) What happens, for instance, if the examiner/expert dies and no one can find the test results?
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.... and the list goes on.
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So what are the current delays? Whenever asking for standard mobile telephone evidence, for instance items such as cell site radio test measurement data or ask for corroboration of enquiries to and written responses from the mobile operator, the prosecution do not readily hold the evidence and massive delays ensue until just before going before the Judge part of the evidence suddenly emerges and then the defence are left to hurry an examination of that evidence.
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I have a case on right now where I requested evidence on the 6th March 2009 and apart from the prosecution correcting mistakes in their material which the defence had to point out to make any sense of what the prosecution's evidence was meant to mean, the other corrobating information expected to be found in the file or CD under the Golden Rule principle and could/should have have been disclosed up front in March, this still has NOT been served. For instance, the radio test results have still not been served along with other information.
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These delays impact by causing problems for the defence in many ways. Some examples are:
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i) Defence experts are expected to tidy up the technical errors and mistakes (not typos though) with the prosecution's evidence. This implicitly means though that defence experts are acting as quasi-prosecution experts. These errors and mistakes are red-herrings though and occupy defence time to put them right, so by the time the requested evidence comes through the trial date is upon us and then the defence have limited time to conduct a proper and orderly analysis, which implicitly means the defence are equally being cajoled into overlooking some evidence or make mistakes due to being rushed.
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As a side matter that is also concerning. If by chance some were to suggest that the observation about quasi-prosecution experts is not true, then consider this. If defence experts were to write reports delivered at court before the jury identifying all the inherent technical flaws and what evidence had not been served or served late just before/at trial, a defence expert would be more likely to get a reprimand from the Judge for wasting time and for not raising it sooner. In the alternative, the prosecution would go away correct the mistake and put version 4 of the evidence before the jury. It still means the same thing though, that defence experts are being placed into the position of acting as quasi-prosecution expert because the work they do identifying those corrections will be used against a defendant. My natural instincts tell me this is an appaulling breach of human rights. It will take someone with a far greater mind than mine, maybe even Lord Bingham, himself, to put that in the appropriate legal context highlighting that injustice in the current criminal evidential procedures.
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Additional note: When mentioning human rights and injustice, my comments are not intended to campaign to get criminals off, my intentions are clearly about the rules that define how evidence should be presented and the roles people play in that process and about evidence generally. It is also about safeguarding our rights, our childrens' rights and our families' right to a fair trial in Britain, as opposed to deciding who gets the better court case based upon who understands what evidence should have been presented at the outset.
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ii) The discussion being raised is not about where mobile telephone evidence suddenly becomes relevant just before or during a trial and taking everyone by surprise, it is where the evidence has already been examined and the delays to present the evidence to the defence means changes that can be happening in the radio network or the operator deletes data after a period of time prevents the defence from pursing lines of investigation of their own or conducting tests. The delays muddy the waters for the defence to properly do their job.
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iii) Where the defence expert is prevented from knowing the weight of the technical case against a defendant it means the defence expert cannot properly advise the defence solicitors. More importantly this handcuffs the defendant from knowing the prima facie case against him or her.
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iv) Another matter which is causing headaches: by the prosecution's actions of delaying service of evidence which they already hold (Golden Rule requirement) but they choose not to disclose for months on end impacts as defence experts cannot afford the time locked to a case over a long period. More importantly, as cases that run for months and months means the defence expert is not being paid until the end of the case it is just not financially viable for the defence expert to take the work. Consequently defence experts are being driven out. It should be noted also defence experts have no powers to demand evidence, we can only ask. This means that we are left to correct the prosecution technical errors and point out in advance the missing evidence (see - i) quasi-prosecution expert, above).

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These evidential delays have not just started but have been going on, and with increased regularity, long before the recession started, so the recession is not the reason for the delay occurrences. The delays are not stated in procedural requirements and are not stated to be accepted because they (the delays) are usual, standard practice. The remedy to make these problems to go away is absolutely clear and easy to achieve and that is for the prosecution to stop the delays in serving evidence and present it up front, without delay, in every case using the Golden Rule evidential acquisition process needed in order to conduct a risk assessment. The CD/paper work can then be immediately passed to the defence without delay.

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UPDATE

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Just wanted to add an extra piece to this discussion that I had considered when forming my observations.

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The case in point deals with fairness, not simply from a defence view point but prosecution, too. When requesting evidence it is a 'requirement' of the defence expert (thus defence) if, during examination and analysis, there is something wrong with the evidence or there is evidence missing that the defence expert should ask for it no matter how late in the day.

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That is because if the defence expert doesn't ask for it the defence cannot request it and it could lead to an unfair trial. So when it is thought I am giving the prosecution a hard time over requesting evidence and asking them where is this particular piece of evidence that they would naturally need in order to know whether, say have the Masts changed or not before testing, it is not my intention to make someone look bad, or imply they don't know what they doing or in some way create difficulties.

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As an expert there is a requirement to inform the defence, whether they like it or not, tedius or not, the expert must put it to them and seek the evidence or understanding about the evidence. That is because it is the duty of the defence to raise it to the prosecution so that prosecution are given a fair chance to deal with the request.

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For the discussion in this thread it took account of the Gleeson principle, which I record below.

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Testing the evidence: In our adversarial system, the defence, of course, are entitled to exploit adventitious faults and failings by the prosecution. Auld LJ in his Report of the Criminal Courts Review incorporated into his judgment in the case of Gleeson [2003] EWCA Crim 3357 at paragraph 36, in which he said:

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"To the extent that the prosecution may legitimately wish to fill possible holes in its case once issues have been identified by the defence statement, it is understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles."

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Some important words there are "....once issues have been identified by the defence statement....." and "Requiring a defendant to indicate in advance". How can that be done if the defence expert has seen errors or omissions in the prosecution evidence but then goes on not to ask for those gaps to be filled?

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The problem here will be that where evidence is trickle fed to the expert s/he will always be tactically put on the back foot so as not to catch up, thus potentially failing the principle whereas if all the evidence is disclosed up front would that problem still exist?