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.

Conflicts Call Records & SMS Delivery Dates

Conflicts Call Records & SMS Delivery Dates

One of the topics dealt with on my training courses just last week is getting examiners to appreciate the relevance of date and time stamps for received SMS text messages. Essentially, it should not be assumed as fact that a text message date and time stamp and call record date and time stamp for the SMS reflect the actual date and time of receipt by a mobile telephone.

The warning during training is worth raising, but there is nothing better that having a reminder about this matter. I have had two reminders of the fact that delayed text messages can occur. Over the last couple of days, Two text messages that were sent to me arrived yesterday and today. The text that was received yesterday 08/10/07 was sent on the 05/10/07. The text received today 09/10/07 was sent on the 04/10/07. Note how the older dated of the two text messages arrived later.

There may be some who might argue that:

1) 7F106F3C was full up and 7F106F43 threshold was exceeded, thus preventing texts being received? I can confirm 7F106F3C wasn't full and there is plenty of memory for incoming texts, thus 7F106F43 would not have been invoked.

2) That my mobile 'phone inbox was full up? I can confirm that it wasn't and there is plenty of memory available for incoming texts.

3) That my phone had been switched off all that time? I can confirm my mobile 'phone has been switch ON, on most occasions, except at night and for re-charging. Additionally, I have been receiving texts from others.

4) That the mobile had or has been in a poor service coverage areas? No this would not be correct because on the 04/10/07 I was right by the mobile operator's mast from which my mobile receives service and usually the location for my mobile is in a good coverage service area.

This topic raises important matters regarding mobile telephone evidence in criminal proceedings:

A) That the date and time in an SMS text message is the SMSC date and time that received the sent text message from its subscriber. There are some, not many, mobile telephones that do identify a date and time for the text folder when the message was received, but that is not the text message itself. Also the folder date and time is as accurate as the user set the clock on the mobile 'phone. The latter folder issue maybe a moot point though for where the text message is deleted and later to be recovered, the mobile telephone folder or its date and time stamp are not recovered.

B) That the call records reflect the charging parameters date and time, not necessarily the delivery date and time of an SMS text message. Therefore, this can create conflict between the call records dates and time and SMS delivery dates and times.

C) In criminal proceedings, we largely deal with historical data and therefore the subscriber of an mobile telephone account may receive a message that can be some time after the date it was sent and the message maybe subsequently saved or deleted. However it may also be the case that the subscriber may not remember down the line whether a particular text was received late or not.

To overcome this problem and for corroborative purposes, naturally, call record data that identifies details of a received SMS text message should include the network operator's record confirming receipt of the text message including date and time stamp. The network receipt arises as the mobile 'phone is required to provide confirmation of the message delivered to it. You might think this is analogous to a "Registered Post" letter requiring the addressee to sign having taken taking delivery of it.

Conflicts Call Records & SMS Delivery Dates

Conflicts Call Records & SMS Delivery Dates

One of the topics dealt with on my training courses just last week is getting examiners to appreciate the relevance of date and time stamps for received SMS text messages. Essentially, it should not be assumed as fact that a text message date and time stamp and call record date and time stamp for the SMS reflect the actual date and time of receipt by a mobile telephone.

The warning during training is worth raising, but there is nothing better that having a reminder about this matter. I have had two reminders of the fact that delayed text messages can occur. Over the last couple of days, Two text messages that were sent to me arrived yesterday and today. The text that was received yesterday 08/10/07 was sent on the 05/10/07. The text received today 09/10/07 was sent on the 04/10/07. Note how the older dated of the two text messages arrived later.

There may be some who might argue that:

1) 7F106F3C was full up and 7F106F43 threshold was exceeded, thus preventing texts being received? I can confirm 7F106F3C wasn't full and there is plenty of memory for incoming texts, thus 7F106F43 would not have been invoked.

2) That my mobile 'phone inbox was full up? I can confirm that it wasn't and there is plenty of memory available for incoming texts.

3) That my phone had been switched off all that time? I can confirm my mobile 'phone has been switch ON, on most occasions, except at night and for re-charging. Additionally, I have been receiving texts from others.

4) That the mobile had or has been in a poor service coverage areas? No this would not be correct because on the 04/10/07 I was right by the mobile operator's mast from which my mobile receives service and usually the location for my mobile is in a good coverage service area.

This topic raises important matters regarding mobile telephone evidence in criminal proceedings:

A) That the date and time in an SMS text message is the SMSC date and time that received the sent text message from its subscriber. There are some, not many, mobile telephones that do identify a date and time for the text folder when the message was received, but that is not the text message itself. Also the folder date and time is as accurate as the user set the clock on the mobile 'phone. The latter folder issue maybe a moot point though for where the text message is deleted and later to be recovered, the mobile telephone folder or its date and time stamp are not recovered.

B) That the call records reflect the charging parameters date and time, not necessarily the delivery date and time of an SMS text message. Therefore, this can create conflict between the call records dates and time and SMS delivery dates and times.

C) In criminal proceedings, we largely deal with historical data and therefore the subscriber of an mobile telephone account may receive a message that can be some time after the date it was sent and the message maybe subsequently saved or deleted. However it may also be the case that the subscriber may not remember down the line whether a particular text was received late or not.

To overcome this problem and for corroborative purposes, naturally, call record data that identifies details of a received SMS text message should include the network operator's record confirming receipt of the text message including date and time stamp. The network receipt arises as the mobile 'phone is required to provide confirmation of the message delivered to it. You might think this is analogous to a "Registered Post" letter requiring the addressee to sign having taken taking delivery of it.

Another Mobile Telephone Stun Gun

Another Mobile Telephone Stun Gun

If I carry on like this I will probably end up with the world's largest webblog catalogue of mobile telephone stun guns. Having previously reported on mobile telephones being re-designed as weapons at this webblog, well here's another. Just to be clear I will not promote where these products can be obtained, but I do highlight that these devices do exist and, as always, ask those who are seizing, handling or examining mobile telephones to take care, so as to avoid personal injury.

This realistic looking smartphone-style stun gun delivers 900,000-volts of so-called "protection" and using only three (3) CR2 batteries. Previous mobile telephone stun guns claimed 800,000-volts or lower. As a generous bonus the manufacturer of this device has added 12 LED flashlight, so that users can white-light blind the vision of their victims before whacking the poor souls with 900,000-volts - how generous! The unit is 4-inches in height and comes with a snazzy holster for those who are fashion conscious. So as to prevent users from zapping themselves the manufacturer as thoughtfully put in two levels of safety - well quite, it just wouldn't do would it for the user to be zapping themselves?

Take care, be lucky.