Even though it is less than 24 hours since my last story that involved the CPS, it is equally less than 6 hours since the Guardian gave us ‘Police outsource digital forensic work to unaccredited labs‘ (at https://www.theguardian.com/uk-news/2018/feb/12/police-outsource-digital-forensic-work-to-unaccredited-labs). It is here that Hannah Devlin informs us of the issues that might plague the courts over the next 2 years. She decides to start strong with the subtitle ‘Market for data analysis called a ‘race to the bottom’, with trials failing because of evidence issues‘ and that is not all. Her article gets stronger paragraph by paragraph. I raised some of these issues yesterday, but that was in general before I even touched on the outsourcing issues. She removes all brakes with the quote: “Gillian Tully, the government’s forensic science regulator, said there is “no excuse” for police forces to continue to use unaccredited providers. “It’s clearly of concern when contracts are being placed with providers that are not compliant,” she said“. Hannah is right, there is a lot wrong at this particular moment in time. And with “The Met outsources digital forensics provision to a defence technology company, called Mass, which subcontracts casework to other private companies, some of which are unaccredited. City of London Police uses six external providers, three of which are not accredited” we see two additional issues. The first is that when a contractor decides to subcontract, they will only do that whilst there is still a profit, so the costing of this endeavour will, once highlighted make matters worse for the CPS. As it is crying on resources, we see outsourcing of outsourced materials. The second issue is that the chain of evidence is now all over the place, which could endanger the privacy of the accused, the victim and possible give additional cause for concern that the course of justice could be in theory end up being perverted in more than one way. This must be the ultimate wet dream for Rupert Murdoch, all that optional information without having to hack mobile phones. The call for an immediate public inquiry in this matter seems almost unavoidable. I think that even without a ‘digital forensic degree‘ the fact that I saw a failing within 5 minutes of reading certain matters in R v Allan is only juicing the frenzy for hard draconian actions in all this. Hannah is completely correct when she states: “In the past decade, digital forensics has evolved from a niche capability to a central element in the investigation of almost every serious crime. The electronic footprint left by suspects can help rapidly establish alibis, identify accomplices and expose spurious claims“, setting is fuelled further that it was not only on disclosure, the joint review gave me clear thought on the lack of actual investigation into the basic connections. That part took me LESS than 300 seconds; or alternatively less than 5 minutes for those less interested in precision. So when we see the BBC article (at http://www.bbc.com/news/uk-42417553) which gives us: “A computer disk containing 40,000 messages revealed the alleged victim had pestered him for ‘casual sex’“, we need to realise that checking text messages is done by using the most simple of computer find actions through <CTRL>-F and enter the place of transmission (phone number or identity) would have given the investigation the clue that something was amiss and that is something any IT technician or entry level helpdesk support representative could have done in under a minute, so when Hannah Devlin is implying that something is wrong she is not kidding, she is basically being slightly too diplomatic (a flaw I am fortunately not gifted with). This situation is almost like 30 people walking in on a man sledgehammering another person to death in full view of an audience of 30, and one of them states: “You might require legal representation“. Yup! That would be regarded as the quote of the year!
The article also shows an issue with the view of criminal barrister Andrew Keogh, who gives us: ““You’d be led to believe that there’s some magic in this accreditation and that if you’re not accredited you’re not good,” said Andrew Keogh, a criminal barrister based in Wigan and a visiting fellow at the University of Northumbria. “That’s not true at all.”“, actually, my learnered friend would be wrong in more than one way. You see that unaccredited office is simply ‘not good enough‘, because being ‘good enough’ is ascertained by the accreditation. Feel free to check with the Rt Hon the Baroness Tessa Blackstone on accreditation by the Bar Standards Board and ask whether there is any validity of hiring any legal counsel to represent you in a criminal matter who is not accredited by the Bar Standards Board.
So his view of ‘if you’re not accredited you’re not good’ might sound true, but it is not about being ‘good’, it is about being ‘good enough‘. The commercial sector has all kinds of accreditation, some are as one might think, a ‘load of bollocks‘, and some are essential for keeping afloat. It might merely be my personal view, but being accredited before being allowed anywhere near a life changing situation seems really important to me. Would you trust the first passer-by to use a non-automated defibrillator on you? I reckon that the situation that puts you in prison for life (or merely 8-15 years) requires to be handled by a person who has been checked for having the right qualifications and knowledge of how to deal with evidence. Call me old-fashioned that way, that just how I roll.
So basically I am in line with Norman Lamb who gives us: “The whole fragility of the market and what happens to samples that are suddenly in insolvency, we can’t mess around with this, it goes to the heart of people’s rights as citizens“, so the chair of the science and technology select committee (the person sitting on it) states that there is a flaw in the current tendering and it is leaving the sector vulnerable. I think that it in equal measure endangers the people accused and also the optional victims in all this. So when we consider that there is now evidence that Liam Allan (now 22) has been on bail for almost 2 years will have suing nature with the Metropolitan Police. Can we blame him? In addition, as we might feel for the woman connected to this, the stigma will haunt both. The messages shows him to be allegedly innocent (I am stating alleged, because I never saw the actual messages) and on the other hand we have a case on non-repudiation, because is there evidence that she actually send those messages? That part I can understand as I have had a few messages (from an unmentioned non linked source) where I was offered to ‘fuck her‘ whilst I know she had never had any interest in me in that way (or any other way for that matter). It took less than 5 seconds to realise that someone used her mobile trying to be ‘funny’. The entire forensic screw up gives, again, a wrong light to parties and it could have been prevented, a 2 year mess that could have been largely diffused in less than 2 hours. It now gives both the stigma that could have been avoided as well, and as we read that this work is done by unaccredited companies and people makes it an infuriating one because there are hundreds of people who are hoping to get justice through their day in court and they will be waiting for an additional longer time to get there.
And that is not all, the CPS mad it even worse with the statement: “it was decided that there was no longer a realistic prospect of conviction“, which in some measure implies that he was the man ‘who got away with it‘ and that is optionally a separate level of failure. That too came from the BBC in December 2017. So, even as we were given the ‘casual sex requests’ part on one side that does not prove that the woman in question was giving consent when they met. Because digital forensics failed, the stigma will remain and in addition they are empowering events where victims grow less and less certain that they will receive justice or get the protection that these victims are entitled to. That is a failing beyond merely the forensic side and that makes the entire mess even a lot larger than merely the academic view of accreditation.
Yet beyond Andrew Keogh, there is another view. With “Others dispute whether the accreditation system, widely used to assess DNA and toxicology labs, is readily applicable to digital work” we need to realise that this is a bigger basket of worms. One field of science is not the other one and the digital science part has been and will remain in motion for years to come, which also gives more considerations to the digital forensics field. Even as we can agree that there are basic needs, the fact that mobile technologies alone are in transit and in an in-usage evolution spiral, which means that the technology is evolving whilst the technology is used, so there are more issues even below the surface. You have to merely look at the Android and IOS updates a user goes through on a weekly basis to see that there are constant changes. The dangers are that these changes have two sides, the parts we see and the parts we do not see. The second one includes data streams and as these streams optionally change (or have additional digital parameters), there are moments when data is wrong, or better stated wrongly set. To view this I will give you two quotes. The first was: “Google is adding a real-time location sharing function to Google Maps that can be very useful. It can also be restrictive and annoying or, in a worst-case scenario, potentially abusive and controlling“, the second one is: “When we bought our house in 2011, Google maps placed it 1.5 miles south of the actual location“. So important that these are two different quotes, not related to one another. But the essence is that the mobile could have optionally given information that a mail was send from ‘another’ location given the perpetrator a ‘false’ alibi. That error could be the vital part in a defence setting a perpetrator wrongfully free. So in that one instance we see that accreditation is essential and in the second part that there is a supporting side that the DNA and toxicology accreditation might not be (completely) correct for digital accreditation. Without knowing more it is hard to completely agree with the given dispute, but it is clear that here is a possible agreement on that side.
So you would rightfully be left with the question, how anyone in this entire chain of organisations decided to make the call to just outsource it all and how those not passing any quality testing would have been allowed near the evidence in the first place. The implied issues as we see the articles from the BBC, the Guardian and the Independent give a rise to concerns all over the field, not in the least with the victims related to this. You see in light of the transgressor and the victims, the person being the victim in the end is not a given and raises the issue even further. If I can add a reasonable doubt to these cases, how far could I get, without the accreditation to add reasonable doubt to any murder case that relies on digital evidence? In the R v Allan case, I merely needed two minutes and knowledge on how to use an ASCII editor, what happens when a murder case gives me the digital data and optional setting of time and location? The ‘opportunity’ to add reasonable doubt because a lot of this data has no non-repudiation will add to the mountain of reasonable doubt that would add to a long list of acquittals, that is before any barrister can raise the lack of accreditation of the people processing the digital evidence in the first case. And these are all matters that happen before someone wants a proper list of decisions regarding the rules of outsourcing whilst looking at the documentations from the Metropolitan Police, the CPS and the DPP. It is pure speculation on my side, but I reckon that the list of issues would grow even beyond the scope I can see at present. You see, part of this is seen in the BBC article (at http://www.bbc.com/news/uk-england-derbyshire-42453405). Here we read: “Judges heard police asked the woman to retrieve Facebook messages that they had exchanged. Three pages of messages had been printed and the woman, who cannot be identified, told jurors she had deleted some to free up storage space“. I have an issue with that part, because of the setting. In the first how many messages were deleted? What space was freed? I find the entire matter very debatable, especially as something that I noticed almost immediately, that part took the CPS and parties 4.5 year to figure out? OK, it happened 4.5 year earlier which is not the same thing, but the issue stands. How many cases have been bungled like that and what happens when the courts start to overturn murder cases because there is an issue with the digital evidence? Even if the digital evidence was not key; the chance of additional cause and effects could potentially be seen when there are retrials and they could give issues to a lot more damage. Consider the partial quote “jurors at the trial had been given an “edited and misleading” picture“, in a murder case that will have far reaching consequences.
I feel certain that the end of these events have not been reached and I reckon it will take the CPS several months to realise the full impact of all of this, which would be another worry altogether, because all this could potentially lead to a case load that is a lot higher than ever before and the claimed damages that the government faces could add up to a lot more than most could ever imagine. The latter part is speculation, but in light of claims already underway, I am unlikely to be incorrect on that matter.
It is not without concern that I wonder what other matters Hannah Devlin can raise in subsequent articles on this matter, because I am certain that in the near future we will see more, not less of these ‘evidence failure’ events.