ForensicMobex has moved to MTEB LinkedIn Group as a subgroup:
Stakeholder Information
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Mission Statement: Expert discussion group relating to the examination of and/or evidence from mobile/smart phones, PDAs/IPODs/IPADs/USB, SIM/USIM and other storage devices. The use of logical or physical procedures; the relevation of harvested data; use programs and other tools; interpretation of data.
Mission Aims & Objectives of this group: to improve communications between experts, assist diagnostic approach and build issues of professional interest, as well as improving knowledge skills and awareness.
This group is at all times company, make/model, OS, tool, platform and app neutral. You, the Stakeholder, warrants to MTEB, MTEB ForensicMobex SIG and the owner of the group that you undertake to indemnify MTEB, MTEB ForensicMobex SIG and the owner of the group regarding the distribution and use of material where it holds copyright invested in it.
By joining this group each member becomes a stakeholder in the group and agrees to regular active participation, which is monitored regularly. A stakeholder who fails to contribute meaningful content such as knowledge and/or experiences, identify research papers (with links) and/or materials/tools identification etc then membership will be suspended. This policy has been agreed to ensure fairness to all contributor members.
*We do NOT accept impersonal anonymous IDs, recruiters and HR people
*We do NOT accept students unless they demonstrate prior skills and experience
*We do NOT accept those with less than 5 connections to other LinkedIn members.
If your Profile doesn't immediately convince us that you have the skills and experience outlined we will NOT admit you.
Listing a job title or role, owning or managing a business or one of its departments in your Profile is not enough to join. We want to know that you have the skills and experience to fit in with one of the best expert groups on LinkedIn.
Please make sure your profile is up to date before applying for membership.
Showing posts with label expert. Show all posts
Showing posts with label expert. Show all posts
Sunday, December 16, 2012
Sunday, May 20, 2012
Evidence is one thing, Understanding is another
Evidence is one thing, Understanding is another
I like Nokia. They were in at the beginning and presented the World with options, and so many walked behind, in their footsteps. The Nokia 110 and 112 still hasn't stopped the examiner from seeing potential evidence:
Seeing through the eyes of experienced examiners:
Mobile phones - understanding their contribution to evidence.
I like Nokia. They were in at the beginning and presented the World with options, and so many walked behind, in their footsteps. The Nokia 110 and 112 still hasn't stopped the examiner from seeing potential evidence:
Seeing through the eyes of experienced examiners:
Mobile phones - understanding their contribution to evidence.
Tuesday, June 15, 2010
Evidence and Admissibility Part 2
Evidence and Admissibility Part 2
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The FSR (Forensic Science Regulator) as we know has identified a standard for laboratories that is said to be directly applicable to the field of digital mobile telephony, which is ISO/IEC 17025. To recap on background information; this is the main standard used by testing and calibration laboratories. This standard was formally known as ISO/IEC Guide 25. This standard contains many commonalities with QA standard ISO9000. When the second release of ISO17025 occurred in 2005 it did so based upon the agreement that its quality system wording was closely aligned with IS09000 version 2000. Readers may remember I referred to adopted principles in ISO17025 and QA standards in my previous posting Evidence and Admissibility Part 1.
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So why is ISO/IEC 17025 applicable to all experts and examiners? Significantly, unlike ISO9000 and BS5750, this standard introduces the concept of, and the requirement for, 'competence' of the individual to be included into the equation because the standard applies directly to those organisations that produce testing and calibration results. The fit for purpose requirement of tools is set out under a different requirement, which is 'validation'. In order for 'tools' to remain valid equally relies upon the individual's competence, and at minimum should be:
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a) Possess the highest competencies or attain them if the organisation is to rely on the individual to work with a tool;
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b) To have been independently assessed by long-term experienced and skilled individuals as opposed to tool suppliers merely approving to get the sale of a tool;
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c) Know what the 'tool' does;
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d) Have the skills to assess whether the 'tool' is technically failing or systemically flawed in its operation;
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e) To be able to maintain the 'tool's' performance - equally means maintaining an individual's skills;
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f) To know and understand the requirements of future-proofing and sustainability.
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How can the above be achieved? For sometime there has been a call for Mobile Phone Forensics Degrees but the Universities failed to take up the proposition. From enquiries made into this matter, it became clear the Universities, despite producing MSCs with one or half of one module containing something on mobile phone examination, the Universities do not have the competencies and skillsets for the work, nor could they identify the materials needed for the degrees or have the ability to assess student competence. That arises because the area is a specialism, thus requires a specialist approach and therefore this is no poor reflection on the academic brillance of Universities. So in this regard it makes no criticism of the Universities for not offering every specialism in the marketplace. This is why the Diplomas (http://trewmte.blogspot.com/2010/05/diplomas-mobile-telephone-evidence.html) have been introduced to solve this particular dilemma in the marketplace given the tens of hundreds involved with this field of distinction. The Diplomas provide a stepping stone to recognising 'competence', which currently examiners are being denied. Moreover, the modules have been prepared in the Diplomas to follow a similar structure to the way in which a student would undertake an MSC.
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Another area where the Diplomas assist is in relation to cost. Currently MSC degrees cost between £3K to £7k per annum. The latest reported news in the media is that these tuition fees are set to increase even higher, maybe even skyrocket. The Diplomas work the other way around, the more modules you undertake the lower the costs become due to the way the discounts work. The encouragement to undertake the Diplomas therefore doesn't just include imparting real-world knowledge and experience passed on by seasoned professionals, but incentive discounts offered by uptake of the modules enables the securing in-advance of the professionals time which otherwise wouldn't be possible. Furthermore, and at the same time, they offer affordability to students.
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Why is the way forward given above a better way than the current status quo? Neither the Forensic Science Regulator (FSR) or UKAS can approve the 'competence' of individuals for each particular field of forensic /evidential distinction. Universities as we know do not have the skillsets necessary to rollout degree courses in mobile telephone evidence. Specific to our field of distinction, the Mobile Telephone Examination Board (MTEB) was set up specifically to address peer review; the Diplomas are one way to gain peer review leading to recognition through the MTEB. The foundation to each of the modules in each of the Diplomas map principles to be found in simulated annealing for deterministic and random events that are often understood to be the basis of how evidence from mobile telephone usage occurs. The Universities gain from Diplomas as they work in harmony with them to aid students find the academic path to follow for a specific subject rather than the current way of devaluing and diluting other sciences and forensic fields to build up modules introduced into hybrid technology degree courses. So we need to understand the influences and impact of the quality or state of existing in or assuming different educational forms (generically speaking, polymorphic).
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The future of mobile communications and its impact on society will grow even more than hitherto it has. The driving forces for this can be traced as much to remarks on future Global economies by industry illuminaries such as the head of LM Ericsson, the largest telecommunications manufacturer, when he said the future is "wireless" as much to the growth in smartphones and wireless smart devices and the newer wireless transmission and protocols, functionality and applications introducing diversity in the wireless world that looks set to surpass the cable world. However, to meet those exciting and progressive markets, Business can no longer afford to wait for degree students to flock out from Uni after 3 years and then spend another 1-2 year/s bringing them up to speed in the fast-changing wireless environment.
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An example of fast-changing wireless environment which identifies sustained regular change can be found in the wireless standards used nationally and globally:
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_____________________________________________________________
3GPP specifications
The term "3GPP specification" covers all GSM (including GPRS and EDGE) and W-CDMA specifications. The following terms are also used to describe networks using the 3G specifications: UTRAN, UMTS (in Europe) and FOMA (in Japan).
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Revised versions of many of these specifications are produced up to four times a year following the quarterly TSG plenary meetings (TSG GERAN meets five times a year.)
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The Diplomas take all of those conditions above, turn them around and re-work them. Students pursue the business goals first, being effective and self-managed at work, and then use the academic route to refine and hone particular, finite skills to optimise the end result for the benefit of the business. This model can assist Universities to get students wanting to achieve the technical hardcore goals in order to develop products, systems and services tailored from the diversity of the business enterprise and working environment. This can be so because the student's constructive thought process is based upon real-world exposure, not school-to-university idealogical observations. Moroever, there are examiners already working in the field who (a) have not had a fair opportunity to have their competencies recognised by (b) their peers and in the community. The Diplomas remove that unfair stigma for those mobile phone examiners being treated as second class.
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So what are some of the future evidence and admissibility issues to be considered?
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1. Recognised competence so reliance is NOT solely placed upon the tool; thus the removal of "push-button forensics" used to side-step the need for competency
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2. Validation of tools will come about (thus side-stepping compliance is unavoidable). Indeed one particular tool developer agrees validation is entirely achieveable. So this is a step forward for validation, but again does not of itself qualify the 'competency' of the individual if trained to use the tool beyond gaining exposure to the tool's operation and use, but not the detail of the subject matter of the science, the technology using the science or, indeed, interpretation of outcomes or data.
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3. Item 2 (above) is really a further qualification as to why the FSR and UKAS do not appear as candidates to qualify/recognise individual 'competency' in the subject matter or science.
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In the next part, Part 3, the discussion deals with specific technical issues and their impact on evidence and admissibility.
Tuesday, June 08, 2010
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?
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?
Sunday, October 11, 2009
Extra-Statutory
Extra-Statutory
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Where, for illustrative purposes only, a Home Office circular regulates e.g. the use of listening devices and aural and visual procedures, the standards set by that document may be the same as those under a Stature (say RIPA or, previously, IOCA) but that Home Office circular does not mean by following its guidance it makes any acts or omissions compliant with the statutory provisions; conduct arising from following the circulars regulation, and not the statute, could be "wholly extra-statutory" and would probably contravene the European Convention on Human Rights - see Malone v Metropolitan Police Commissioner [1979] Ch 344; cf Malone v United Kingdom (1984) 7 EHRR 14.
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The above represents past history events and matters have or should have moved on since then. When RIPA was introduced it was made clear that "no" extra-statutory conduct or operations were possible arising out of that new legislation. That any acts outside of that may amount to contravention and be unlawful.
The above represents past history events and matters have or should have moved on since then. When RIPA was introduced it was made clear that "no" extra-statutory conduct or operations were possible arising out of that new legislation. That any acts outside of that may amount to contravention and be unlawful.
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Having illustrated a simplistic model about "extra-statutory" activity by public authority and public bodies or their personnel to avoid giving advice, direction or guidance which would/could probably mean such acts may operate in parallel to the statutory provisions instead of being enshrined within them, the same principle of extra-statutory can apply across many other areas covered by other statutes, too.
Having illustrated a simplistic model about "extra-statutory" activity by public authority and public bodies or their personnel to avoid giving advice, direction or guidance which would/could probably mean such acts may operate in parallel to the statutory provisions instead of being enshrined within them, the same principle of extra-statutory can apply across many other areas covered by other statutes, too.
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Advice, direction and guidance given to facilitate the transmission of sensitive and/or unlawfuly material over public systems to aid extraction and harvesting of data from device/s might probably be "wholly extra-statutory" conduct or operations. That is even where it is a one-off case. Where advice is given to do acts which appear to go against previously stated authority in dealing with certain types of materials, the expert/examiner should record all dealings with those acts that have been instructed.
Advice, direction and guidance given to facilitate the transmission of sensitive and/or unlawfuly material over public systems to aid extraction and harvesting of data from device/s might probably be "wholly extra-statutory" conduct or operations. That is even where it is a one-off case. Where advice is given to do acts which appear to go against previously stated authority in dealing with certain types of materials, the expert/examiner should record all dealings with those acts that have been instructed.
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I picked up on this whilst reading books and papers dealing with judicial review of administrative action, Blackstones Criminal Practice, Archbold, telecommunications law and practice and the laws of the internet etc etc. I also noted that ACPO Guidelines and other provisions in public sector procurement documents appear not to cover any examiner/expert who enters into extra-statutory acts.
I picked up on this whilst reading books and papers dealing with judicial review of administrative action, Blackstones Criminal Practice, Archbold, telecommunications law and practice and the laws of the internet etc etc. I also noted that ACPO Guidelines and other provisions in public sector procurement documents appear not to cover any examiner/expert who enters into extra-statutory acts.
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These are only my observations based upon what I read, which may assist other examiners/experts. I am not giving legal advice and I do hold out to be a lawyer. It could be from what I have read that my observations may be wrong and therefore it is always recommended to seek legal advice about instructions given or past instructions acted upon, under the belief those instructing were authorised to give such directions to do such acts in the first place.
These are only my observations based upon what I read, which may assist other examiners/experts. I am not giving legal advice and I do hold out to be a lawyer. It could be from what I have read that my observations may be wrong and therefore it is always recommended to seek legal advice about instructions given or past instructions acted upon, under the belief those instructing were authorised to give such directions to do such acts in the first place.
Extra-Statutory
Extra-Statutory
.
Where, for illustrative purposes only, a Home Office circular regulates e.g. the use of listening devices and aural and visual procedures, the standards set by that document may be the same as those under a Stature (say RIPA or, previously, IOCA) but that Home Office circular does not mean by following its guidance it makes any acts or omissions compliant with the statutory provisions; conduct arising from following the circulars regulation, and not the statute, could be "wholly extra-statutory" and would probably contravene the European Convention on Human Rights - see Malone v Metropolitan Police Commissioner [1979] Ch 344; cf Malone v United Kingdom (1984) 7 EHRR 14.
.
The above represents past history events and matters have or should have moved on since then. When RIPA was introduced it was made clear that "no" extra-statutory conduct or operations were possible arising out of that new legislation. That any acts outside of that may amount to contravention and be unlawful.
The above represents past history events and matters have or should have moved on since then. When RIPA was introduced it was made clear that "no" extra-statutory conduct or operations were possible arising out of that new legislation. That any acts outside of that may amount to contravention and be unlawful.
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Having illustrated a simplistic model about "extra-statutory" activity by public authority and public bodies or their personnel to avoid giving advice, direction or guidance which would/could probably mean such acts may operate in parallel to the statutory provisions instead of being enshrined within them, the same principle of extra-statutory can apply across many other areas covered by other statutes, too.
Having illustrated a simplistic model about "extra-statutory" activity by public authority and public bodies or their personnel to avoid giving advice, direction or guidance which would/could probably mean such acts may operate in parallel to the statutory provisions instead of being enshrined within them, the same principle of extra-statutory can apply across many other areas covered by other statutes, too.
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Advice, direction and guidance given to facilitate the transmission of sensitive and/or unlawfuly material over public systems to aid extraction and harvesting of data from device/s might probably be "wholly extra-statutory" conduct or operations. That is even where it is a one-off case. Where advice is given to do acts which appear to go against previously stated authority in dealing with certain types of materials, the expert/examiner should record all dealings with those acts that have been instructed.
Advice, direction and guidance given to facilitate the transmission of sensitive and/or unlawfuly material over public systems to aid extraction and harvesting of data from device/s might probably be "wholly extra-statutory" conduct or operations. That is even where it is a one-off case. Where advice is given to do acts which appear to go against previously stated authority in dealing with certain types of materials, the expert/examiner should record all dealings with those acts that have been instructed.
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I picked up on this whilst reading books and papers dealing with judicial review of administrative action, Blackstones Criminal Practice, Archbold, telecommunications law and practice and the laws of the internet etc etc. I also noted that ACPO Guidelines and other provisions in public sector procurement documents appear not to cover any examiner/expert who enters into extra-statutory acts.
I picked up on this whilst reading books and papers dealing with judicial review of administrative action, Blackstones Criminal Practice, Archbold, telecommunications law and practice and the laws of the internet etc etc. I also noted that ACPO Guidelines and other provisions in public sector procurement documents appear not to cover any examiner/expert who enters into extra-statutory acts.
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These are only my observations based upon what I read, which may assist other examiners/experts. I am not giving legal advice and I do hold out to be a lawyer. It could be from what I have read that my observations may be wrong and therefore it is always recommended to seek legal advice about instructions given or past instructions acted upon, under the belief those instructing were authorised to give such directions to do such acts in the first place.
These are only my observations based upon what I read, which may assist other examiners/experts. I am not giving legal advice and I do hold out to be a lawyer. It could be from what I have read that my observations may be wrong and therefore it is always recommended to seek legal advice about instructions given or past instructions acted upon, under the belief those instructing were authorised to give such directions to do such acts in the first place.
Monday, November 03, 2008
Counterfeit Mobile Phones
Counterfeit Mobile Phones
Many thanks to my good friend Vinny Parmar for this contribution he has made exclusively to http://trewmte.blogspot.com.
Vinny has prepared a report for the webblog about "Dummy" mobile phones that are counterfeit Nokia N95, which are currently in circulation. His expert report is well illustrated and Vinny imparts good advice inkeeping with his long term expertise and experience when dealing with mobile telephone examinations.
Vinny's report can be downloaded from the following link:
http://www.filebucket.net/files/7173_hzc7c/Counterfeit%20N95%20Report.pdf
Thursday, October 30, 2008
Nice to recommend Lee Bowdler Richard Body & Co
Nice to recommend Lee Bowdler Richard Body & Co
A little while back I wrote about a Barrister and Barristers' Chambers to highlight that it is still an important commodity to recognize and thank people for the work they have done (http://trewmte.blogspot.com/2008/04/barristers-surrey-chambers.html). It is a commodity that, at times, seems to be in very short supply in this day and age, but a commodity I am not intending to give up.
One of the pleasures with having a blogspot is to be able to write nice things about nice people. I have just finished a case down in Hastings Sussex and I had the absolute privilege of working with a really excellent professional Mr Lee Bowdler of Richard Body and Co Solicitors. Throughout my expert engagement with this firm I could not have been treated better and the support I received from Lee was first class.
When I needed evidence relating to cell site analysis, as long as I could demonstrate to him why I needed it and its relevance to his client's case, Lee went and got it. Even when this meant taking people to task who were wasting his time; Lee always supported his expert. By way of illustration, specific details we asked about particular radio coverage and the technical arrangements at particular Masts, which I know some have said on the defence and prosecution wasn't obtainable, was in fact available and obtainable - you just have to ask the right questions, pay for it and have the legal privilege to obtain it.
To me this was a first class performance from Lee Bowdler and the solicitors practice of Richard Body and Co. As this solicitors practice works in criminal law and employment law in the Sussex, Surrey and London area, should anyone need legal assistance I would certainly recommend contacting Lee at this firm.
Lee Bowdler
Richard Body & Co
66 Bohemia Road
St Leonards
East Sussex TN37 6RQ
Tel: 01424 201301
Email: crimedept@richardbodyandco.com
One of the pleasures with having a blogspot is to be able to write nice things about nice people. I have just finished a case down in Hastings Sussex and I had the absolute privilege of working with a really excellent professional Mr Lee Bowdler of Richard Body and Co Solicitors. Throughout my expert engagement with this firm I could not have been treated better and the support I received from Lee was first class.
When I needed evidence relating to cell site analysis, as long as I could demonstrate to him why I needed it and its relevance to his client's case, Lee went and got it. Even when this meant taking people to task who were wasting his time; Lee always supported his expert. By way of illustration, specific details we asked about particular radio coverage and the technical arrangements at particular Masts, which I know some have said on the defence and prosecution wasn't obtainable, was in fact available and obtainable - you just have to ask the right questions, pay for it and have the legal privilege to obtain it.
To me this was a first class performance from Lee Bowdler and the solicitors practice of Richard Body and Co. As this solicitors practice works in criminal law and employment law in the Sussex, Surrey and London area, should anyone need legal assistance I would certainly recommend contacting Lee at this firm.
Lee Bowdler
Richard Body & Co
66 Bohemia Road
St Leonards
East Sussex TN37 6RQ
Tel: 01424 201301
Email: crimedept@richardbodyandco.com
Tuesday, October 09, 2007
Expert Evidential Disclosure in Criminal Proceedings
Expert Evidential Disclosure in Criminal Proceedings
When dealing with mobile telephone evidence it is important to be aware of the rules of expert evidence. This too goes for technical and examiner witnesses. In the recent case of R -v- Lorraine Harris & Others (2005) EWCA Crim 1980 Lord Justice Gage was invited by counsel for the Crown to give guidance in relation to expert evidence where the evidence was considered frontier evidence and the significant failure within the criminal justice system to control and manage expert evidence. Counsel argued that there must be a change in approach. The Court of Appeal, however, took the view that, regardless of whether or not the criminal justice system had failed to control and manage expert evidence, they were reluctant to give any new guidance on expert evidence arising from the facts in these particular cases.
Gage LJ took the view that developments in scientific thinking and techniques should not be kept from the court. He considered this to have been demonstrated amply by recent cases involving new techniques such as facial mapping. He went on to express the view that this openness should be so even in cases where scientific thinking was at such an early stage that it could amount to no more than a hypothesis. Obviously, it would be imperative that the true hypothetical nature of the expert’s evidence be frankly indicated to the court.
Using the reasoning of Wall J in the case of Re: AB (Child Abuse: Expert Witnesses) (1995) 1 FLR 181 the current thinking of the Court of Appeal suggests that expert evidence in developing or controversial fields should have its place in court and ought not to be discouraged. However, the expert must be frank and open about the scientific status of such evidence and should reveal any material that might be contradictory. There can never be, said the court, a single test to provide a threshold for admissibility in all cases. It is up to the judge in each case to decide whether expert evidence should be admitted.
These matters follow on the heels of disclosure requirements raised in late 2006 and and 2007. These particularly related to disclsoure by prosecution expert, professional and technical witnesses generally. Set out in the "Golden Rule" (enunciated by Lord Bingham in R -v- C and H 2004) it removed the right of the witness to arbitrarily decide what evidence s/he would or wouldn't provide to the Crown Prosecution Service or Police and to have identified "all" evidence detailed in lists of "used" and "unused" material generated from the witness' work in the case, which should be disclosed in evidence. All data, test results, standards, academic works etc to be recorded and copies provided to CPS or the Police for assessment and disclsoure where necessary. The principle here perhaps suggesting the defendant should know what is in the file that is being used against him or her (Foucher -v- France 25 EHRR 234).
Thanks to Dr Chris Pamplin and the UK Register of Expert Witnesses for the cases and background info to them. For full details of the cases contact UK Register of Expert Witnesses.
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