In IT-related cases criminal courts should be changed to include a
court-appointed expert, or even an entire jury of technical
specialists, according to a BCS report, which also recommends a
code of practice for handling computer evidence, writes John
Kavanagh.
The BCS submission to a review of the criminal courts system, by
the Lord Chancellor's Department, says the problems in such cases
range from mishandling of evidence by police to the courts' lack of
familiarity with computer evidence.
It says such issues need to be acted on because the range of
criminal cases involving computer evidence is already very broad,
and can be expected to widen with the development of the Internet
and the introduction of the Regulation of Investigatory Powers
(RIP) Act. This will enable the police to access e-mails and
telephone calls through digital switches.
The BCS Computer Evidence Taskgroup, set up by the society's
Legal Affairs Committee, highlights several problems in this area,
and says courts are "generally unfamiliar with the subject of
computer evidence".
The group says, "Criminal courts regularly underestimate the
high level of technical complexity of cases involving computer
evidence. Broadly stated prosecution allegations are often
inadequately specified in technical terms.
"Criminal courts can easily underestimate the vast quantities of
computer evidence. It is not unusual to find hundreds of thousands
of files stored on the disc drive of a single PC, and many cases
involve multiple drives and/or multiple computers and/or computer
networks.
"A fundamental problem is the difficulty the criminal courts may
have in understanding that all computer evidence is derived from
binary data. That data cannot practically be examined or exhibited
as evidence in a legal sense. It requires expert interpretation and
presentation simply to be exhibited as evidence.
"A sequence of binary bits may be a fragment of a program or
file. The precise significance of any sequence of binary bits can
only be determined by interpretation within a specific context.
"The fact that expert interpretation is made using software,
which may itself be unreliable, introduces further
difficulties."
The group says investigators "regularly mishandle" computer
evidence, in particular, failing to secure it.
It continues, "Prosecutions are quite frequently abandoned
before trial as a result of contamination of computer evidence by
careless handling."
The group adds, "It is simple to tamper with computer evidence.
Tampering may leave no trace of having taken place."
The group calls for acceptance that computer evidence needs to
be treated differently from traditional paper evidence. It also
"strongly recommends" the preparation of a code of practice for
handling, securing and preserving computer evidence.
BCS group warns firms that commercial disputes are not
criminal cases
Companies could be abusing the legal system by getting
commercial disputes, that are, in effect, private prosecutions,
treated as criminal cases, according to the BCS Computer Evidence
Taskgroup.
"We note with concern a small but growing number of cases
involving computer evidence that may not belong in the criminal
court process," the group says.
"Examples include software counterfeiting cases, typically
brought by trading standards departments at the behest of powerful
software publishers, and cases concerning confidential data or
designs.
"In both cases, the underlying dispute is between commercial
organisations over intellectual property rights. We are concerned
that criminal cases are sometimes brought to save the cost of a
civil case falling on the commercial organisation.
"Indeed, in some cases, criminal actions are only instigated
when it becomes apparent that existing civil actions are doomed to
fail."
The group continues, "A greater criticism arises where the
prosecution evidence is largely provided by the commercial
organisation and its employees. Not only is there little or no
police investigation of the evidence, but the commercial
organisation can be selective about the evidence ."
"We believe that such essentially civil cases may constitute a
misuse of the criminal court process."