Digital Age Legal Challenges: Tech Evidence Explained

Advances in technology over recent decades have significantly improved the police’s ability to obtain evidence. As a result, digital or tech evidence has become increasingly important in prosecution cases. The prosecution may use digital forensic evidence to attempt to prove a defendant’s location at the time of an alleged offence, to prove contact between individuals, or simply to obtain evidence of illegal material on a device. In many cases, it becomes necessary for the defence to obtain their own digital expert to both understand or rebut this evidence.

What counts as digital evidence?

Digital evidence is any information stored or transmitted in digital form that a court may rely upon. In practice that covers a large range of material:

• Mobile phone data, including messages, call records, location data and deleted content
• Computer files, browser history, and cloud storage
• Social media accounts and direct messages
• CCTV and doorbell camera footage
• Financial transaction records
• Email communications
• Metadata attached to images and documents

The sheer volume of digital material generated in the course of an average day means that, in most cases, the prosecution will have access to far more data than they can meaningfully analyse. That creates both a challenge and an opportunity for the defence.

What Type of ‘Tech Evidence’ May Be Used in Your Case?

Cell Site Evidence:

Cell site evidence or cell site analysis is a forensic technique which maps the location of a mobile phone by linking its location to network towers using Call Data Records. The police will often use this to verify the location of an individual. They will use this to link a defendant to an offence by showing their proximity to the offence location at a certain time by analysing which cell tower a phone connected to during a specific time range. This type of evidence is often used in conspiracy cases.

Although this evidence can often create a strong prosecution case, there are a number of limitations. For instance, while it identifies where the phone is, it does not necessarily prove that the individual was in possession of the phone at that time. It is also only accurate to an approximate location. It will go by the nearest network tower which can often cover a large distance. The evidence could place you at the scene of a crime, when you are actually at another address nearby.

Searches for Illegal Material

It is also very common in police investigations for digital devices to be seized by the police in order to search them for evidence or for illegal material. Even if material has been deleted, it is, more often than not, possible for the police to be able to locate or identify this material.  Therefore, an important decision that often has to be made is whether to provide your device PIN or password to the police. In many cases, even without providing the PIN to the police, they will be able to ‘break in’ to your device, although there are some devices where enhanced security means this may not be possible.

In cases where it may be impossible for the police to obtain access to your device without the PIN/password, they may consider obtaining an Order under S49 RIPA (Regulation of Investigatory Powers Act 2000). This is the process whereby the police approach the Crown Court for an order demanding the PINs or passwords to the device. Failure to comply with that order can result in the commission of a separate offence which in some cases can carry a maximum sentence of five years imprisonment. It is not, in most cases, a defence to simply state that you have forgotten the PIN/password. It is therefore often important to make a record of these even if you are not intending to provide this to the police. It is important to obtain advice from a solicitor as to your options in light of a RIPA Order being issued.

Messages, Web Searches, Phone Logs

In many cases, the police may simply obtain a download of your phone data. They will use this to show evidence of certain web searches which may be indicative of the defendant’s mental state or intention at the time of the alleged offence. They may also use this to show messages and call logs, using this information to paint a picture of the nature of a relationship, for example.

In these cases, the defence can ask to obtain a copy of the download and search for our own evidence to identify particularly helpful evidence which may rebut the prosecution’s version of events.

Examples of Offences Where Forensic Data is Often Used:

• Drug supply cases – the police/prosecution will often search a device for messaging indicative of drug supply
• Conspiracy Cases (particularly in relation to drug supply or thefts) – the prosecution may obtain cell site data to link a defendant to the location of offences, to other defendants or to display a pattern of involvement
• Indecent Images Cases – the police will search the device for presence of illegal material and relevant online searching or messaging
• Domestic Cases (particularly Controlling and Coercive Behaviour) – the police and prosecution will often look through messages to evidence controlling behaviour
• Stalking and Harassment Cases – the prosecution will obtain a download of the device to obtain email chains, messages and call logs to demonstrate patterns of unwanted or frequent contact
• Importation Cases – the prosecution may look into defendant’s web searches and messages to show the state of an individual’s knowledge at the time
• Fraud – the prosecution may look into a defendant’s phone activity and web searches to demonstrate the state of an individual’s knowledge at the time

What to do now?

Digital forensic evidence can be complicated and confusing. If you have a case where digital forensic evidence might be relevant, it is important that you contact defence solicitors who are able to talk you through the potential consequences and instruct a competent expert to rebut this evidence. At Old Bailey Solicitors, we have over 25 years’ experience dealing with and analysing such evidence.  We also regularly instruct our own experts to assist our clients.

If you have been charged with an offence and the police are looking to use technical evidence against you or you believe that you have evidence which could significantly support your case, contact Old Bailey Solicitors on 0207 846 999 or email [email protected]