Good discussion re ...
 
Notifications
Clear all

Good discussion re disclosure of digital evidence in the UK  

Page 1 / 2
  RSS
pbeardmore
(@pbeardmore)
Active Member

Well worth a watch IMHO

https://goo.gl/w85FJ7

Quote
Posted : 16/05/2018 5:38 pm
trewmte
(@trewmte)
Community Legend

Pat, I had watched it and found the discussion from all three presenters to be very interesting. Clearly, their working perspective is similar to others experiences; but it is the solutions being put forward as probable answers to existing problems that raise even more questions.

It does seem strange…

Where they stand
(1) FSR has pushed for compulsory ISO17025 and that has public sector costs (e.g. tax payers money) associated with it.

(2) Law enforcement has to equally buy the forensic tools and other items to gather the evidence and that has public sector costs (e.g. tax payers money) associated with it.

(3) The system then falls down (as we learned from the discussion) as the analysis of the evidence isn't complete due to lack of money and staff time, etc.

What might become of it
(4) The discussion raises the proposition, should the defence expert have all the digital material, which introduces the notion if evidence is missed or overlooked in a sea of terabytes of data who would be liable then? This is without the implied reduction in costs to defence experts?

(5) With all the terabytes of data to hand would the defence expert now have an obligation to the prosecution to act (pro-tempore) to bring evidence to the table that the prosecution missed to support their case? Would the defence expert be paid for that bifurcated obligation as well?

ReplyQuote
Posted : 17/05/2018 3:27 pm
Jamie
(@jamie)
Community Legend

Well worth a watch IMHO

https://goo.gl/w85FJ7

Agreed - many thanks for sharing.

ReplyQuote
Posted : 17/05/2018 7:55 pm
dandaman_24
(@dandaman_24)
Active Member

Also this from BBC in UK https://www.bbc.co.uk/programmes/b0b228hf

ReplyQuote
Posted : 17/05/2018 9:26 pm
pbeardmore
(@pbeardmore)
Active Member

Glad you found the link of interest.

My own position would be very similar to Peter Sommer's in disclosing everything (if requested). As soon as you go down the route of not disclosing everything, you are putting the prosecution in a very tricky position re their decision making process.

Part of the issue seems to be that disclosure is not built into either quality systems or the "mind set". A discloure list, bundle or set of drives should be building up as the investigation advances rather than a last minute "treasure hunt" to track things down.

Having said that, when you have multiple parties (conspiracy etc), then there are obvious issues re privacy and I honestly dont see any easy solutions with that.

On a wider note, I do wonder if (even on a subliminal level) , disclosure is seen as "helping the bad guys" and, therefore, does not get the focus it deserves. I dont want to sound preachy (is that a word?) but we should all think of ourselves on the same side in terms of establishing facts rather than a "them and us" culture. I have had cases where I have tracked down fragments of data that have helped greatly assisted the defence (whilst working for the prosecution) but I am just as pleased with the level of work. Not sure if this is the same within the Police?

ReplyQuote
Posted : 18/05/2018 10:49 am
ludlowboy
(@ludlowboy)
Member

Disclosing all digital evidence can have problems when there are multiple defendants. If a person has been charged on the basis of evidence found on a co-defendants computer how much of the data are they entitled to?

ReplyQuote
Posted : 18/05/2018 8:02 pm
trewmte
(@trewmte)
Community Legend

Disclosing all digital evidence can have problems when there are multiple defendants. If a person has been charged on the basis of evidence found on a co-defendants computer how much of the data are they entitled to?

Yes good point ludlowboy. Also some defence may not want this in cut throat defence cases

ReplyQuote
Posted : 18/05/2018 8:32 pm
athulin
(@athulin)
Community Legend

On a wider note, I do wonder if (even on a subliminal level) , disclosure is seen as "helping the bad guys" and, therefore, does not get the focus it deserves.

Or perhaps, in some parts of the world, 'does not help me to win'.

Noted this some time ago http//www.governing.com/gov-criminal-justice-reform-Brady-evidence-lc.html?utm_term=More%20States%20Force%20Prosecutors%20to%20Hand%20Over%20Evidence%20--%20Even%20When%20It%20Hurts%20Their%20Case&utm_campaign=More%20States%20Forcing%20Prosecutors%20to%20

I suspect there is a difference between adversarial judicial processes and inquisitorial/nonadversarial, but I'm not sure I've seen any studies of if it has any effects on disclosure.

ReplyQuote
Posted : 19/05/2018 10:23 am
minime2k9
(@minime2k9)
Active Member

Also raised was the effect on a victim of 'disclosing everything'. Should a suspect on a rape or domestic abuse case have the entire contents of the victims phone available to them?

ReplyQuote
Posted : 19/05/2018 7:10 pm
ludlowboy
(@ludlowboy)
Member

Under the Criminal Procedures Investigation Act it defines what is Sensitive Material. This includes ‘Material relating to the private life of a witness’. (Right to privacy under ECHR legislation).
The advice is that this type of material should Not be disclosed.
It seems that you are dammed if you do and dammed if you don’t!

ReplyQuote
Posted : 20/05/2018 9:43 am
trewmte
(@trewmte)
Community Legend

Under the Criminal Procedures Investigation Act it defines what is Sensitive Material. This includes ‘Material relating to the private life of a witness’. (Right to privacy under ECHR legislation).
The advice is that this type of material should Not be disclosed.
It seems that you are dammed if you do and dammed if you don’t!

Yes very good. Puts in mind what about privacy for those identifiable persons who are not witnesses and have no involvement with a case. Crikey! that would set a bad precedent if the defence expert starts roping into a case non-relevant persons just to make a point… That is meant in terms of less experienced individuals handling digital material and including it in a submitted report. Defence may well find they have to redact their own expert's report.

ReplyQuote
Posted : 20/05/2018 1:15 pm
minime2k9
(@minime2k9)
Active Member

Under the Criminal Procedures Investigation Act it defines what is Sensitive Material. This includes ‘Material relating to the private life of a witness’. (Right to privacy under ECHR legislation).
The advice is that this type of material should Not be disclosed.
It seems that you are dammed if you do and dammed if you don’t!

Does it specifically say witness and if so would this include victim? You'd hope so for the same reasons but still

ReplyQuote
Posted : 20/05/2018 4:07 pm
ludlowboy
(@ludlowboy)
Member

I believe there is no problem disclosing to a suspect what was found on their computer. The problems are

what do you disclose from a victims computer?

What do you disclose to the co-defendant from the other suspects computer?

I think we need to point this out to the OIC and the decision should be theirs or in a major enquiry for the disclosure officer to decide.

ReplyQuote
Posted : 20/05/2018 8:12 pm
watcher
(@watcher)
Active Member

An interesting video from my point of view which is American, and newly retired hence the time to spend on this. 8)

Peter Sommer says around 101440 that he's proposing making a copy of the forensic image available to the defense because exhaustive analysis is not possible. I'm surprised that this is not already common practice! I would expect any competent defense attorney in the U.S. to demand a full image copy for independent analysis. Exceptions would be if CP was involved, but even then a full image copy in a controlled environment, vice an uncontrolled duplicate, should still be obtained.

Around 1035, the question revolves around the standard magic bullet wish, what new tool eliminates the need for understanding and knowledge? I saw that here all the time as well.

Around 1046, "Can't get evidence from U.S. based companies." Most ironic as headline news here often complains the opposite.

Around 1055, too much bureaucracy and not enough funding. Oh no, the UK is the same as the US!

The whole second panel, starting around 1103, while interesting from a legal and social point of view, has nothing to do with digital forensics.

ReplyQuote
Posted : 21/05/2018 10:58 pm
minime2k9
(@minime2k9)
Active Member

Peter Sommer says around 101440 that he's proposing making a copy of the forensic image available to the defense because exhaustive analysis is not possible. I'm surprised that this is not already common practice! I would expect any competent defense attorney in the U.S. to demand a full image copy for independent analysis. Exceptions would be if CP was involved, but even then a full image copy in a controlled environment, vice an uncontrolled duplicate, should still be obtained.

This is standard practice in the UK already. Every request I receive would include the forensic image files as a minimum

ReplyQuote
Posted : 22/05/2018 2:19 pm
Page 1 / 2
Share: