If a warrant is issued by a Magistrate for a particular address for a male concerned in the supply of drugs for example, the officers have a month to execute this warrant, (after this date one has to write a short report as to why it was not executed and send the warrant back,signed NOT EXECUTED)
So a month to execute and secure evidence from this, interview the detainee about the items you have seized,drugs paraphenalia etc,but the mobile phone has been sent off for analysis,surely this handset cannot wait a couple of months before first examination(if the handset shows a pin lock on the SIM I appreciate there is a time constraint waiting for the network to get back to us)
What is the validity for a handset to come from this raid and only two and a half months later a forensic examiner "starts" work on this? you wouldnt be able to return to the address two and a half months later under the same warrant for some new evidence and start searching again,
sorry but this is confusing me
If a warrant is issued by a Magistrate for a particular address for a male concerned in the supply of drugs for example, the officers have a month to execute this warrant, (after this date one has to write a short report as to why it was not executed and send the warrant back,signed NOT EXECUTED)
So a month to execute and secure evidence from this, interview the detainee about the items you have seized,drugs paraphenalia etc,but the mobile phone has been sent off for analysis,surely this handset cannot wait a couple of months before first examination(if the handset shows a pin lock on the SIM I appreciate there is a time constraint waiting for the network to get back to us)
What is the validity for a handset to come from this raid and only two and a half months later a forensic examiner "starts" work on this? you wouldnt be able to return to the address two and a half months later under the same warrant for some new evidence and start searching again,
sorry but this is confusing me
This takes me back to a while. bigjon this has come up quite a few times and it gets discussed, someone comes in from the sidelines, bowls everyone a googerly, goes away and misunderstanding then lasts a year or more with the constant doubt.
There are several issues here. I will give my observations.
( a) There is no elasticity of the Warrant time in comparison to when the mobile phone is being examined.
( b) The mobile phone should be examined within the time frame designated in Warrant (1 week, 1 month, 3 months)
( c) Any examination outside of the Warrant period has been noted to be unauthorised.
Now there is a balance here between
( d) Examination in Warrant - no problem
( e) Unauthorised (outside of Warrant period) - problems
( f) Extra authorisation from a senior officer - proportionality applies
Applying ( f) across the many tens of thousands of mobile phones law enforcement scoop up in a year then where they are not involved in serious crime, you may find justifying delays as unwarranted.
I suspect if proper scrutiny were made into the examination of mobile phones seized under Warrant, later to be examined, a proportion would not have been examined within the Warrant timescales. This may mean unauthorised intrusion.
Another issue that is causing concern is that some believe law enforcement own a seized mobile phone. Put simply, they do not own it and have never owned it. Confiscation needs to be proven and authorised. At the point of seizure the police are merely guardians of the mobile phone which is treated as evidence that may need to be returned to its owner should an enquiry come to an end or a conviction not be successful.
Take the issue of removing flash memory off the PCB, if damage is caused then the owner has the right to seek compensation. If damage is caused and the examination is conducted outside of the Warrant time frame then that could be very bad indeed as it may amount to intentional criminal damage.
Finally, out sourcers are not covered or governed by CPIA or RIPA.
I thought we had had this discussion before trew and now remember your points,thank you
An outsource agency is outside CPIA and RIPA? is the outsource agency though not just an extended arm of law enforcement whilst undertaking the job its been asked to do for them?
Example,phones seized-LE think they could not get all the exams done in time…."I know,lets send the rest to outsource as they are not governed the same and this "buys" extra time!!!"
Cynical???…. me?
An outsource agency is outside CPIA and RIPA? is the outsource agency though not just an extended arm of law enforcement whilst undertaking the job its been asked to do for them?
Observations. Yes, 99.9% of the time and only on rare occasions 0.1% will RIPA be applicable to an outsourcer under specific controlled conditions.
is the outsource agency though not just an extended arm of law enforcement whilst undertaking the job its been asked to do for them?
Two observations.
1) What statute do you say actually empowers that to take place?
2) Also if the police want to think like that, why do the police actually need inhouse TSUs, forensic units, FIB, eCrime Units, CTSUs etc anymore?
Just as an example, can you name any outsourcer firm who tried and has actually be granted the right to be a SPOC and obtain data directly from the mobile network operator on behalf of the police? Also if that has happened, why has law enforcement not published that fact in the public register?
Example,phones seized-LE think they could not get all the exams done in time…."I know,lets send the rest to outsource as they are not governed the same and this "buys" extra time!!!"
Observation. Why are you seeking a Warrant if no consideration has been given to pre-planning?
Sounds like UK law on warrants may be different than here.
After the seizure we make an application for detention for initially 90 days and then can apply for further detentions for up to 2 years by way of affidavit and hearing to the Queens Bench or another Superior Court.
What are the rules in the UK?
Beetle over here the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) impact, inadition to other Statutory provisions, as do the Police Codes of Practice.
As for extension of time, this can be obtained here in the UK.
Here are some examples of Human Rights and Equality of Arms that may interest you
"Equality of arms"
The right to a fair trial involves observance of the principles of "equality of arms" under which the defendant in criminal proceedings must have
"a reasonable opportunity of presenting his case to the court under conditions which do not place him at substantial disadvantage vis-a-vis his opponent"
Kaufman v Belgium, 50 D.R. 98 at 115;
Neumeister v. Austria, 1 E.H.R.R. 91, at para 22;
Delcourt v. Belgium, 1 E.H.R.R. 355;
Borges v. Belgium, 15 E.H.R.R. 92, at paras 26-28;
Jespers v. Belgium, 27 D.R. 61, ar paras 51-56;
Bendenoun v. France, ante, at para 52.
Principle of equality of arms under Article 6(1) overlaps with specific guarantees in Article 6(3), though it is not confined to those aspects of particular proceedings. For example, it will be a breach of the principle where an expert witness appointed by the defence is not accorded equal treatment with one appointed by the prosecution or the court Bonisch v. Austria 9 E.H.R.R. 191.
In cases of non-disclosure to the defence see Foucher v France, 25 E.H.R.R. 234.
Illegally obtained evidence Such evidence is not necessarily excluded. Article 6 of the European Convention on Human Rights is concerned with the right to a fair trial. It is the case that the rules of evidence are in principle a matter for each contracting state and it is not for the European Court of Human Rights to substitute its own views as to the admissibility of evidence for that of the national court, although the court will nevertheless examine whether the proceedings as a whole are "fair" [Miailbe v France (No2)(1996) 23 EHRR 491 ECHR para 43].
A principle arising from EU case law regarding unfairness in relation to illegally obtained evidence has also been historically aired. It is also a principle held that under Article 6 there is not necessarily a requirement that illegally obtained evidence should be excluded, but admission of such evidence can give rise to "unfairness" on the facts of a particular case, may violate Article 6 [Austria v Italy 6 YB 740 (1963)].
With regard to what may constitute fairness/unfairness of evidence Lord Nichols stated in the case of R .v. Khan (Sultan)(1996) 3 WLR 162 that section 78 Police/Code of Practice and Criminal Evidence Act 1984 and Article 6 "march hand in hand" inferring an unbreakable link regarding principles between UK and EU legislation.
Re the outsource acting on behalf of LE, I meant only the examinations of the handsets, to my knowledge I dont know of any firm being able to speak to any network re billing etc.
All the pre planning can go out of the window sometimes when one expects to execute warrant say for a cannabis den only to reveal this guy is running guns,coke and there are ten people in address and many more phones and comps than you originally thought or had intelligence about.
Trew, you said 99.9% of the time they are working for LE and only on rare occasions will RIPA be applicable???this seems to contradict itself
to my knowledge I dont know of any firm being able to speak to any network re billing etc.
bigjon my comments are observations to illustrate only.
However (uh-ho the dreaded however), now you come to mention it - would you say that at court "to my knowledge"
- does that mean if your knowledge might be incomplete?
- so you don't actually know then?
- did you enquire before you commented?
)
All the pre planning can go out of the window sometimes when one expects to execute warrant say for a cannabis den only to reveal this guy is running guns,coke and there are ten people in address and many more phones and comps than you originally thought or had intelligence about.
So for every late examination this is the reason? Mind you the other side of the coin to that is, hardly justifies having mobile phone seizure on the Warrant or in the alternative extending the Warrant period of seizure and retention or in the alternative better planning is needed.
Trew, you said 99.9% of the time they are working for LE and only on rare occasions will RIPA be applicable???this seems to contradict itself
I never said that. I said "Yes, 99.9% of the time and only on rare occasions 0.1% will RIPA be applicable to an outsourcer under specific controlled conditions."
Beetle over here the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) impact, inadition to other Statutory provisions, as do the Police Codes of Practice.
As for extension of time, this can be obtained here in the UK.
.>>>snip
It sounds like the EU Human Rights legislation is similar to our Charter of Rights here as far as exclusionary rules, timeliness of trial etc. goes.
I was more curious about the procedural issue where there is a delay in processing the seized item. As opposed to the historical US procedures (seize first then search), we search the electronic devices in the field during the warrant execution and if they contain items as named in the warrant we seize the device for further analysis.
This is where the detention orders come into play.
The affidavit must state why the item is required beyond the statutory 90 days. In most cases the court will advance detention in 90 day chunks but one thing they do not like, however, is that the delay is due to systemic backlogs or lack of resources and will trim the period in the application or outright refuse it. One saving provision on the return of seized records (including electronic) is that you can make a certified copy before the material is returned and the copies have the same probative force as the original.