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02 July 2019
The rapid development of technology and the use of digital devices such as mobile phones, computers and tablets, which have become an indispensable part of modern society, have resulted in a significant transition from the creation of physical to digital data.
In conjunction with the proliferation of technology, there is a tendency to use information derived from digital devices for criminal activities (eg, cybercrimes like hacking, malware and internet fraud, but also traditional crimes such as homicide, drug trafficking and terrorism).
Consequently, the role of digital forensics in fighting crime is becoming ever more important and it is critical for law firms and courts to develop a well-thought-out strategy for such investigations. In Penderhill, the Supreme Court clarified that the courts must be appropriately responsive to the technical changes that are taking place.(1)
Digital forensics follows a similar process to crime scene forensics when collecting evidence for a potential trial. The digital forensics process involves collecting, analysing and reporting on digital data in a way that is legally admissible. Digital evidence can also be used to prove whether a person has been involved in crimes that are unrelated to technology, such as murder or larceny.
The main repositories of digital evidence are computers, storage devices, telephones, networks, cloud servers and emails. However, as the Internet of Things develops, many other devices will provide digital evidence.
This article aims to demystify this subject and define high-level criteria that can be used to identify the needs and admissibility of digital evidence in court.
Several best practices and guidelines developed by the Scientific Working Group on Digital Evidence, the UK Association of Chief Police Officers and the US National Institute of Justice have been developed to assist investigators in the collection and handling of digital evidence during forensic analysis. Evidence acquisition should always be performed to ensure that it will be admissible in legal proceedings. The key criteria for handling such evidence are as follows:
The following best practices should be followed with regard to digital evidence handling:
Evidence is legally admissible when it:
The golden rule of admissibility is that all evidence which could be relevant is admissible and evidence that is irrelevant is inadmissible.(3) Therefore, the courts must determine whether digital evidence could be relevant to the disputed facts of the case and whether it is suitable and safe to be admitted in proceedings. In practice, admissibility is a set of legal tests carried out by a judge to assess an item of evidence according to the following criteria:
For further information on this topic please contact Pantelis Mountrakis or Michael Ioannou at Elias Neocleous & Co LLC by telephone (+357 25 110 110) or email (email@example.com or firstname.lastname@example.org). The Elias Neocleous & Co LLC website can be accessed at www.neo.law.
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