Evidence in an Electronic Age – What is admissible? Clare Carroll Friday 20 October 2017

Introduction Consider implications for admissibility of evidence from the beginning of an investigation Develop some familiarity with the ways in which information tends to be created and stored in businesses and by the public generally, so that the rules of evidence can be applied in an appropriate way Engage technical/forensic experts where necessary

Regulatory agencies

Unlawfully obtained evidence Unconstitutionally obtained evidence Illegally obtained evidence Consider closely the parameters of your powers as set out in legislation

Investigative powers Enter premises, by force if necessary, with or without warrant Search Seize records, take copies Conduct interviews Demand information / explanations from persons Require access to computers Seize equipment Demand that certain operations cease pending remediation

Exclusionary Rules – Unreliable Evidence Rule against Hearsay Rule concerning Opinion Evidence Best Evidence Rule Original Document Rule

Preference for Oral Evidence Direct Oral Evidence is best Accused person’s right to cross-examine his accuser is a key feature of a trial in due process Rationale behind the Rule against Hearsay – out of court statements are inadmissible to prove the truth of their contents Documents are, generally speaking, out of court statements and are hearsay

Admissibility of Documents and Electronic Evidence Admissibility as evidence to prove the truth of its contents Admissible in that the evidence is authentic (i.e. as opposed to false and has not been tampered with)

Admissibility of Documents – Truth of its Contents Legislative exceptions to the Rule against Hearsay Bankers’ Books Evidence Acts 1879 –section 4 Criminal Evidence Act 1992 – section 5 Other specific legislative provisions in certain sectors Certificate Evidence

Admissibility of Documents – Authentication Duty of investigator to seek out and preserve all relevant evidence Engage internal or external forensic experts as necessary Chain of Custody Robust Documented Forensically Sound

Electronic Media – Admissibility Considerations “Real Evidence” vs “Documentary Evidence”? “Analogue” vs “Digital”? Automated Computer Generated Records CCTV Video Audio Photographs