The report recently published by the Commons Justice committee on disclosure of evidence in criminal cases made interesting reading.
Disclosure is the biggest problem that we come across when conducting cell site analysis work. Take a recent case. We were asked to quote to undertake the work in February 2018. At the time of quoting we always ask the solicitor to make a request to CPS for the original call data records as they were not already in possession of them.
We do this regardless of whether we are likely to be instructed by a particular criminal defence firm as no matter which cell site analysis expert they instruct, we all need the same data in order to conduct our analysis. The LAA finally granted funding to the solicitor 8 weeks later, after making them source other quotes to find the cheapest! Not a particular problem at this stage as the trial was listed for mid-July 2018.
We are well used to conducting urgent cell site work where evidence is served at the last minute so with this particular case we were still left with plenty of time. We were supplied with the call data records for one of the phones for our client. A good start, however we were requesting data for four phones as we needed to look at co-location of defendants and victim.
By the end of May 2018 CPS asked the solicitor for our experts contact details so that they could get the officer in the case to send us what we require direct. This should be an ideal situation when dealing direct with an officer or analyst as nothing gets lost in translation. Finally, we receive contact from the particular police force to say they will send the missing data. We did obtain some data, but again not all of what we had requested.
We were eventually supplied with all the data once the trial was underway and the work had to be completed very quickly. I am not sure why it took nearly 6 months to obtain the source material for exhibits produced by the Crown. I would like to say this is uncommon and while it doesn’t usually take this long we generally have problems obtaining the call data records in about 75% of cases we do.
We have been asked by police officers, even judges why we need the original raw data. We worked on a very high-profile case some years ago and the judge refused our request for the original Excel files and said we could only have the PDF data as that cannot be altered. We had to point out that the request we were making was not uncommon or unreasonable as we needed the source material to check the accuracy of the prosecutions exhibits. We got there in the end, but again the trial was already underway.
We try and make life as easy as possible for both the solicitor and CPS when requesting disclosure of original call data records. We provide wording which can be copied straight to CPS detailing exactly what we need. Within this we always ask CPS for permission for the prosecutions expert or police analyst to release the data direct to us. This permission is rarely granted and I note that this was an issue brought up by another digital forensics provider during questions raised by the select committee.
Hopefully we will see some improvement in the future but we are not yet convinced as we are currently working on a number of cases in which the trials are well underway.