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A new police approach is needed to tackle overwhelming delays to digital forensics
  • Mar 23, 2023
  • Latest Journal

A damning report published by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) has found police forces to be “overwhelmed and ineffective” in relation to digital forensics. The HMICFRS found that there were more than 25,000 devices waiting to be examined – and this is without taking into account all the devices already in the system.

This is not news to criminal litigators who are well aware of the delays caused to police investigations by the inevitable wait for a forensic download to be completed on their client’s mobile phone. While waiting, lawyers will often need to field enquiries from understandably anxious clients about what can be done to expedite the process; unfortunately, the answer is often ‘nothing’.

However, it is worth remembering the Authorised Professional Practice (APP) guidance from the College of Policing on extraction of material from digital devices which states that searches cannot be speculative and must be ‘strictly necessary’:

Mobile telephones or other digital devices will not be examined as a matter of course. They will only be examined in investigations where there is reason to believe it is strictly necessary to acquire material to pursue a reasonable line of enquiry. […] The ‘strictly necessary’ condition can only be satisfied where all other less intrusive methods have been explored and it is considered that the purpose cannot reasonably be achieved through less intrusive means. For example, investigators will consider whether it is sufficient simply to view limited areas (for example, an identified string of messages/emails or particular postings on social media).

The guidance also states that consideration should be given to the CPIA Code of Practice which establishes the duty for officers to pursue all reasonable lines of enquiry, whether they point towards or away from the suspect, and to gather and retain relevant material. This duty could be considered to provide the basis for satisfying the ‘strictly necessary’ criterion in the situation of an investigation.

The case of R v Bater James and Mohammed [2020] EWCA Crim 790 states it is not a ‘reasonable’ line of enquiry if the investigator pursues fanciful or inherently speculative research. Instead, there needs to be an identifiable basis that justifies taking steps in this context. This is not dependent on formal evidence in the sense of witness statements or documentary material, but there must be a reasonable foundation for the enquiry.

The case goes on to provide examples taken from the CPS’s 2018 guidance on disclosure (titled ‘A guide to “reasonable lines of enquiry” and communications evidence’):

‘There will be cases where there is no requirement for the police to take the media devices of a complainant or others at all. Examples of this would include sexual offences committed opportunistically against strangers.’

Meanwhile, the Attorney General’s 2020 Guidelines on Disclosure states, “it is not the duty of the prosecution to comb through all the material in its possession (e.g. every word or byte of computer material) on the lookout for anything which might conceivably or speculatively undermine the case or assist the defence” (Annex A, paragraph 39).

The Guidelines provide the example of a case which involves a complainant contacting the police to make an allegation of an offence against a person they had met that same day. In such as case, the suspect may accept that they met the complainant but deny the allegation. “The complainant and suspect communicated on a single medium. The investigator may consider it is a reasonable line of enquiry to view the messages from the day on which the two persons met as, before and after, they are highly unlikely to be relevant. They may contain material about what was expected or not expected when complainant and suspect met, the nature of their relationship, and the response after they met, all of which may cast light on the complainant’s account and the suspect’s account. That is unlikely to require the investigator taking custody of the phone or obtaining a large volume of data.” (paragraph 13).

The Guidelines go on to compare and contrast this with the example of a complainant who alleged coercive and controlling behaviour over a period of years, including manipulative conduct over various platforms. Here, “a larger quantity of data may be relevant and require review and retention by the investigator by different means.”

All of the above guides the police towards reviewing the circumstances of each individual case and seeking an alternative to a full forensic download where appropriate: for example, where both the complainant and suspect say that they only communicated on Snapchat and did not save any messages, there is little to be gained from a download.

However, unfortunately, we are increasingly seeing a rigid approach of submitting devices for a full download regardless of the facts. Until a long-term solution is found, we can only hope that the police will apply more flexibility in their methods.  The current approach is clogging up the system, causing unnecessary delay and is unfair to complainants and suspects alike.

Laura Kruczynska

Associate (FCILEx)

Laura Kruczynska is an Associate (FCILEx) and has worked in the Criminal Litigation team since 2015.
Laura is a key member of Kingsley Napley’s Criminal Defence team.  She represents clients in a range of cases involving serious and general crime. The main focus of her work is in criminal defence and police investigations, and she has particular experience of defending allegations of a sexual nature. She is organised and efficient and has significant litigation and trial experience. She is praised by clients for her ability to provide support and guidance in the most challenging and stressful of situations.