1. eEvidence Dr Ian Walden Institute of Computer and Communications Law, Centre for Commercial Law Studies, Queen Mary, University of London Baker & McKenzie

2. Introductory Remarks l Why should we be interested? –to enforce rights (civil law) –to regulate activities/actors (administrative law) –to protect society (criminal law) l Evidential Issues –admissibility –probative value l Electronic Evidence Model Law –Commonwealth Technology Model Laws –UNCITRAL Model Law on Electronic Commerce (1996), Art. 9

3. Electronic Evidence Model Law

4. Interpretation (Article 2) l Data –not necessarily information l Electronic record –computer system or other similar device –can be read or perceived l Computer and Computer Related Crimes Bill, art. 13(1)(d): intelligible l Electronic record systems l Legal proceedings –civil, criminal or administrative

5. Admissibility l Common law and civil law systems –investigative v adversarial l Real or hearsay –Sophocleous v Ringer [1988] R.T.R. 52 –e.g. UK: Criminal Justice Act 2003 l business documents l Special rules for computer-derived? –Article 3 l..on the sole ground that it is an electronic record.. –UK: omnia praesumuntur rite esse acta

6. Probative value l Article 5, Authentication –Link person/material test l e.g. Caffrey (2003) –Computer source test l, –Accountability l Acquisition test –e.g. Lotus ScreenCam l Chain of custody test l Evidential presumptions? –e.g. bankers books, copyright ©

7. Best Evidence Rule l Article 6 –proof of the integrity of the electronic record system –printout l UNCITRAL, art. 9(1)(b) –if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form. l UK Law –The time has now come when it could be said with confidence that the best evidence rule, long on its deathbed, has finally expired (Springsteen v Flute International (2001)

8. Integrity l Article 7, Presumption of integrity –(a) operating properly l at material times l UK: Civil Evidence Act 1968, s. 5 –(b) adverse party –(c) person not party to the proceedings l...recorded or stored in the usual and ordinary course of proceedings…

9. Operating Properly l Scope –Shephard [1992] 1 All ER 225 l Networks –Cochrane (1993) CLR 48 l Improper use –ex parte Levin [1996] 3 WLR 657 –Computer and Computer Related Crimes Bill, art. 20 l Material time –Connolly v Lancashire County Council (1994) RTR 79 l Not operating properly –DPP v McKeown & Jones [1997] 1 WLR. 295

10. Role of Standards l Article 8, Standards –re: admissibility l E.g. BSI BIP 0008: 2004 –Code of Practice for Legal admissibility and evidential weight of information stored electronically l Information management policy l Duty of care l Procedures and processes l Enabling technologies l Audit trails

11. Admissibility l Article 11 –...expressly agreed at any time… l e.g. contractual agreement –limitation re: criminal proceedings l Article 12 –electronic signatures –verification purpose

12. Other Issues

13. Forensics: Obtaining Data l Intangible nature of evidence –difficult to obtain –vulnerable to challenge l retrieval, analysis, presentation l Source –claimant, defendant, third-party (e.g. ISP) –stored (e.g. search & seizure ) or in transmission (e.g. interception) l New powers –Computer and Computer Related Crimes Bill

14. Moving Evidence l Issues of Mutual Legal Assistance –Convention-based, Commonwealth scheme l In respect of proceedings or an investigation –from abroad l admissibility issues l specialty principle –from here l dual criminality principle applicable where it involves the use of search and seizure powers l Computer and Computer Related Crimes Bill, art. 15, Production of data

15. Disclosure l Duty to disclose –right of fair trial –e.g. material generated during the investigation l Issues with computer-derived evidence –provision of copy or right of inspection l large volumes of material –apply for permission not to disclose in the public interest l e.g. techniques and methods relied upon by a police officer in the course of a criminal investigation..

16. Expert Witnesses l Duties –R v Reading Justices, ex parte South West Meat Ltd. [1992] Crim LR 672 –UK: Criminal Justice Act 2003, s. 2 l Reports and response reports l Mutually agreed issues l Use of analytical tools –Golizadeh [1995] Crim LR 232

17. l Mode of trial –magistrates, crown l Terminology –agreed glossary of terms l Use of technology –A Guide to the Electronic Presentation of Evidence (EPE) at Trial (Court Service, July 2002) Court Presentation

18. Concluding remarks