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

2. 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

3. Regulatory agencies

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

5. 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

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

7. 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

8. 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)

9. 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

10. 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

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