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< | A Reflection on practising Law in the (British) Internet Society |
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> | A Reflection on Practising Law in the (British) Internet Society Part 1: Mobile Phones |
| | -- By JakeTaylor - 06 Dec 2019 |
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< | To practise as a lawyer within the British internet society is to operate within a system that is so tied to ceremony that it has failed to homogenize the pervasiveness of technology with the inherent counterbalance criminal courts are tasked with providing to state intrusion. |
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> | To practise as a lawyer within the British internet society is to operate within a system so tied to ceremony and tradition that it has failed to homogenize the pervasiveness of technology with the inherent counterbalance to state intrusion that criminal courts are tasked with providing. An examination of one of the items that has become a single focus of 21st century prosecution - the cell phone – a device uniquely present in almost all modern prosecutions, reveals this lived reality. |
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< | The increased interconnectedness of the world has led to a level of individual and societal vulnerability that architects and participants in the current British criminal justice system (CJS), do not truly comprehend. The ubiquity of privacy intrusions has led to apathy on a nationwide scale. In the criminal courts there is residual adherence to the ‘traditional’ Rumpolean model of two learned gentlemen braced in an intellectual duel, with the presumption that the truth will somehow materialize at the end. This has led to a level of complacency towards privacy issues, by practitioners (of which I am more guilty than most) as well as at a systemic level, that threatens the very principles on which the system is based. |
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> | In Britain, as a matter of routine, the majority of police forces undertake ‘digital strip searches’ of cell phones they come into contact with. This allows for the full download of a device, notwithstanding the status of the owner: suspect, witness or victim. The underlying manifest breach of privacy rights is not a consideration. |
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< | Many of these issues cannot be disentangled from the present underlying chronic underfunding of traditional CJS actors (police, prosecution, courts, etc…). Nevertheless, this is a defining time, not just because of the risk of injustice or impunity - in individual cases, but because policy decisions taken by the executive, precedent created by the higher courts, and wilful ignorance by the populace will have a wider impact on the interrelationship between the criminal justice system and privacy going forward (and, for better or worse, may be influential in other jurisdictions). Funding as a partial cause of the crisis, does not justify nor negate from the inherent risks of complacency and daydreaming into a system devoid of sufficient safeguards. My generation will set the paraemeters for the interrelationship going forward. |
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> | The starkness of this practice is presented in the situation of complaining witnesses making sexual assault allegations. Regardless of the circumstances, all are asked to provide their phones for interrogation. Those who refuse risk having their cases dropped by the prosecuting services. In 21st Century Britain, in order to be treated fairly by the criminal justice system, a complaining witness needs to be willing to give up his or her privacy rights. |
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> | The situation is further reflective of the wider failings of the Criminal Justice System with regards to the failure to protect privacy rights. How the system adapts, or fails to adapt, to the fundamental changes brought about by the digital age, will have a profound impact on how the courts operate as safeguards to State overreach. |
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< | CCTV |
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< | Being a barrister in London is like practising law in a 21st century panopticon. Britain has one of the largest concentrations of CCTV cameras, outside of China, in the world. Whether you are walking down the street, or driving on a public road, your movements will be captured. In this way, Britain is a modern-day surveillance State - benign or otherwise. Given that experience tells us in “a closed society… everybody’s guilty” of (some) crime (if you search deep enough), the corrosive impacts on human behaviour are far greater than what has been shown to be a limited impact on crime detection and prevention. There is a disconnect between the purported benefits of CCTV surveillance and the courts. It is not like a criminal trials involving events in London, include more CCTV, better quality surveillance images or even an increase in the volume of prosecutions, they do not. |
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> | Digital Strip Searches |
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< | Aside from changing human behaviour, what this nevertheless does do, is it renders law enforcement actions less visible. Citizens would notice police officers taking photos of cars at every bend in the road and would likely not accept this, but because of the intangibility of the surveillance state, this is rarely discussed, let alone challenged. This model of law enforcement is so far removed from the traditional Peelian notion of police as ‘citizens in uniform’ that defence lawyers are used to challenging in a verbal spar as Rumpole did. |
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> | The private company whose technology is used to facilitate many of the downloads, MSAB, recognizes the inherent value of the digital strip search, “If you have access to a sim card you have access to the whole of a person’s life”. The practice is undertaken with no clear guidelines on the storage of such information and without consideration for the collateral intrusion regarding those who are not subject to the enquiry being conducted. The statutory basis for the conduct is at best questionable and is applied inconsistently amongst forces. |
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> | The Disclosure Process |
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< | Mobile Phones |
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> | The justification for the practice of digital strip searching is the disclosure process and the wide-ranging investigatory obligations placed on the police.
Under the disclosure system, the police and prosecution are obliged to pursue ‘all reasonable lines of enquiry’ and provide to the defendant all evidence they rely upon. In addition, the prosecution are obliged to disclsose all previously unused material that “could reasonably be considered capable of undermining the prosecution case against the accused, or of assisting the case for the accused” as well as inform the defence of the lines of enquiry pursued. |
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< | What is more readily apparent to my practice is the complicity of private actors, in the digital panopticon. In almost every prosecution in the UK, a defendant’s own cell or mobile phone is used as evidence against him or her. The digital trail left by a smart phone is far more useful evidence than the ‘traditional’ conception of the glove, footprint and partial DNA left at the scene by the murderer. |
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> | Disclosure is not the same as carte blanche provision of the keys to the proverbial warehouse. A defendant would need to articulate, in writing, why the material is relevant. This material may be edited and redacted and is subject to inherent undertakings to not be shared or distributed. |
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< | In the UK, mobile phone network providers can, and will upon request, provide telephone logs of call communications made from and to that number. Because each action of a phone must link to a nearby cell tower, this can be used (to a degree of accuracy) to determine where the possessor of the phone was – in a process known as cell site analysis. This is even before the police have, as they invariably do, access to the contents of a defendant’s mobile phone. In the UK the police can compel the handing over of pins or access codes and it is an offence not to comply with such a request. Once in, telephones contain a veritable bounty of evidence. Personal communications are so important because, again from experience, you get to see what people say when they do not think that anybody is listening. |
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> | In ‘relationship’ rape cases – those where the complainant and the defendant are known to one another: semi-stranger, acquaintance or friend, the issue in the case is likely to be consent or reasonable belief in consent – both of which provide full defences. The nature and contents of previous communications, often found on cell phones, are likely to be matters to be relevant to conduct and perception of the conduct. The cases of false allegations are rare, but those cases in the grey area of consent turn on the nature of the relationship both pre and post the purported assault and in that way the messages can and have been shown to be highly relevant. High profile examples include the Liam Allen and Danny Kay cases. |
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< | Sexual Offences |
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> | A Solution |
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< | A connected area where the complexities concerning privacy implications are gaining traction in the public discourse is with regards to the disclosure of the mobile phone downloads of complainants in sexual offences. In effect, in order to be treated fairly by the criminal justice system (or CPS) a complainant needs to be willing to give up his or her privacy rights. |
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> | From the perspective of a defence practitioner, it is tempting to advocate for equal access of digital data for both prosecution and defence. This in some way addresses the embedded imbalance, however, to do so does not address the constitutional significance of the inherent loss of privacy. |
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< | The situation is extremely difficult. It is not ‘of right’ that a complainant’s mobile phone will be provided to a defendant. The disclosure process in the UK is substantially different from (for example) the federal discovery process and the context is important. |
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> | The process advocated for is one common to the criminal justice system and the notion of minimal State intrusion. It would involve applying the safeguards embedded into the search warrant criterion – whereby access is not provided for, in law, unless expressly authorized. Extending the warrant system to apply to digital material, whilst imperfect, introduces specificity and ensures judicial oversight. Most importantly it ensures that the police must show to a judge on oath, reasonable grounds that the material sought is likely to be relevant evidence. A warrant once granted, only allows for specific as opposed to unfettered access, and is subject to proportionality considerations. This approach would at least ensure parity between searches of the digital and the personal property.
Whilst in some cases, the warrant application process will be routine, this approach at least prevents blanket searches and would ensure both the need for as well as a remedy against (un)lawful and proportionate collection of evidence. |
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< | Under the disclosure system, the police and prosecution are under an obligation to pursue ‘all reasonable lines of enquiry’ with regards to an investigation. Whilst a defendant is entitled to see all the evidence to be used by the prosecution against him or her. It is only after the defendant provides a defence case statement - a document that sets out the disclosure obligations on the part of the prosecution. Upon receipt, the prosecution are obliged to make secondary disclosure of previously unused material that “could reasonably be considered capable of undermining the prosecution case against the accused, or of assisting the case for the accused”. |
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> | Conversely, the current solution adopted by the prosecution service require complainant’s to sign a consent form - the Digital Processing Notice (DPN) providing for blanket consent to non-specific and unlimited amounts of data being obtained. The approach is fundamentally flawed in that victims of crime are not in a position to sign away their rights, and consent can rarely be deemed to be ‘informed’ with regards to the complete derogation of digital rights. |
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< | Secondary disclosure is not the same as carte blanche provision of the keys to the proverbial warehouse. A defendant would need to articulate, in writing, why the material is relevant. This material may be edited and redacted and is subject to inherent undertakings to not distribute. The difficulty is that a mobile phone is the gateway to an individual’s digital identity, it is a digital soul. The intrusion is high, the risks and ramifications manifest.
In ‘relationship’ rape cases – those where the complainant and the defendant are known to one another: semi-stranger, acquaintance or friend, the issue in the case is likely to be consent or reasonable belief in consent – both of which provide full defences. The nature and contents of previous communications are likely to be matters to be relevant to conduct and perception of the conduct and in this way frequently ‘reasonable’. The cases of false allegations are rare, but those cases in the grey area of consent turn on the nature of the relationship both pre and post the purported assault and in that way the messages can and have been shown to be highly relevant. High profile examples include the Liam Allen and Danny Kay cases. |
| | Do Right & Fear No-one |
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< | The CJS is based on Blackstone’s ratio that "it is better 100 guilty Persons should escape than that one innocent Person should suffer”.
Religious adherence to this doctrine by practitioners who operate under the ‘cab rank system’ as mouthpieces for hire, results in little attention being paid to the social circumstances and context of each case, beyond seeking to do the best for that client. This means that in the UK privacy issues are not being grappled with. The risk is, in an arcane, outdated system, without consideration of the wider issues, the essential counterbalance played by defence advocates is lost, in that way rights become eroded. This is a defining time, funding issues are a sign of the contempt shown towards traditional counterbalances. As my mentor said to me on my first day in court “do right and fear no one”.
A very good start. At this stage, the coherence in the essay is rhetorical: the tone provides the consistency that the crucial factual material, which is at present rather a jumble, does not. Your concluding paragraph epitomizes this condition: it is rhetorically strong, built to end on "do right and fear no one," which is left ringing in our ears as it should, barely covering the begged question, "what can the legal profession do about all this?"
From a substantive point of view, your argument is that there are two consistent foci of 21st century prosecution: the cameras and the phone. You explain why the law of criminal procedure puts those materials disproportionately in the hands of the police and the prosecution. You show why both complaining witnesses and defendants are at a disadvantage against the state's overwhelming desire to know. One can hypothesize things you might say about how to alter the system, by giving the defense a form of access to the cameras and the phones that at least somewhat rebalances power, but you do not say so.
There is another underlying point, suggested but not touched on: our constitutional understandings about civil liberties have resulted from the historically weak condition of the executive organs in England, compared to the larger and more efficient Continental despotisms. For centuries, that policelessness underlay the English-speakers' unique balance in the direction of individual rights. (This topic is more extensively explored in the spring course, so if you decide to take yourself of the waiting list there and sign up for a seat we can work on it together.)
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> | In a digital society, actors in the Criminal Justice System have not woken up to the need to ensure new safeguards as against state intrusion. Unquestioning reliance in the historical belief that police are just citizens in uniform’ has allowed a surveillance State to thrive. Digital strip searches are but one example. Now is a defining time for the new and innovative counterbalances and for those involved in the system to, as my mentor said to me on my first day in court “do right and fear no one”. |
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |