Author Topic: eEvidence (Model Law)  (Read 1033 times)

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eEvidence (Model Law)
« on: August 12, 2006, 10:50:13 PM »
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Dr Ian Walden
Institute of Computer and Communications Law,
Centre for Commercial Law Studies, Queen Mary, University of London
Baker & McKenzie


Introductory Remarks

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

Electronic Evidence Model Law

Interpretation (Article 2)

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


Admissibility

Common law and civil law systems
investigative v adversarial
Real or hearsay
Sophocleous v Ringer [1988] R.T.R. 52
e.g. UK: Criminal Justice Act 2003
‘business’ documents
Special rules for computer-derived?
Article 3
“..on the sole ground that it is an electronic record..”
UK: omnia praesumuntur rite esse acta


Probative value

Article 5, Authentication
Link person/material test
e.g. Caffrey (2003)
Computer source test
<A HREF..>, <IMG SRC...>
Accountability
Acquisition test
e.g. Lotus ScreenCam
Chain of custody test
Evidential presumptions?
e.g. banker’s books, copyright ©

Best Evidence’ Rule

Article 6
proof of the integrity of the electronic record system
printout
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.”
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)


Integrity

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


Operating Properly’

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

Role of Standards

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

Admissibility

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

Other Issues

Forensics: Obtaining Data

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


Moving Evidence

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

Disclosure

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

Expert Witnesses

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

Court Presentation

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

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