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The BBC has reported that the number of prosecutions in England and Wales that collapsed has risen sharply by 70% over the last two years due to police failing to properly disclose evidence. In 2017, 916 people had charges dropped over evidence disclosure failings, which was up from 537 in 2014 and 2015.
The evidence disclosure failings have come to light after recent collapsed rape cases highlighted a failure to share evidence with defence solicitors. In a separate incident, a human trafficking case collapsed because social media evidence was not disclosed. The Crown Prosecution Service (CPS) has stated that the justice system had “systemic” problems. In the lead up to criminal trials, police and prosecutors have a duty to disclose digital evidence that will either assist the defence case or undermine the prosecution. However, the recent collapse of these cases has heightened already existing concerns that digital evidence is not being disclosed early enough, and that the rules are not being adhered to.
CYFOR Head of Investigations and digital forensics expert, Matt Lashley, who has over 15 years’ experience within the field has his own expert thoughts on the situation;
“The issues surrounding the evidence disclosure failings fall into two categories;
1) Officers underestimating the evidence;
2) The seizure of digital evidence which is not target specific.
In relation to officers underestimating evidence, it is an oft-used – yet vastly overlooked and underappreciated – statement that officers profess when providing evidence to a court, which includes the line: ‘I have reviewed the contents of this device’.
Invariably, this is not so – mainly due to time constraints, not having the technical know-how or having the proper technical tools available. Modern devices and social media accounts hold vast amounts of data, some of which is only visible when the correct method is applied to extracting it. In most cases, it is not practicable for an officer to review all this data and make an informed decision on whether the evidence undermines or assists the prosecution case.
Secondly, officers have not been given adequate training in relation to digital disclosure. Devices contain personal data which can date back many years. It is not feasible to apply the disclosure test to the data extracted from several 256GB iPhones, as this could take one officer years if done correctly.
Therefore, Law Enforcement needs to be more target specific when extracting data and focus their efforts on the areas which are relevant to the investigation.
For example; if a complaint is made about an abusive text message sent a week before, is it justified to make a forensic image of every photograph, video and internet search term on the device for the last five years? However, before an informed policy decision can be made, the senior decision-makers must learn and understand this area of work. Understanding digital evidence needs to be a priority for every member of Law Enforcement.”
Correct training for officers and senior decision-makers to enable more target specific seizures of digital evidence. If the police are unable to facilitate this because of resource and funding issues then external experts should be utilised.
Law Enforcement needs to address the issue of resourcing digital investigations. In the current climate, officers don’t have the required time to address this issue. Development of software and automated systems is required to address the scale of the data. I would even suggest that A.I may potentially be an option going forward.
CYFOR’s long-standing expertise within digital forensics makes us well placed to provide assistance at short notice. If you have a case that requires our services or if you would like some expert advice on a current disclosure matter then please contact us.
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