Legal issues surrounding the admissibility of electronic evidence in Tanzania

Tanzania has a law governing the admissibility of electronic evidence. This law brought several changes. It provides for the manner in which electronic evidence may be admitted. It also prescribes the requirements for determining the authenticity of electronic evidence. But the law seems to be incomplete and wrong in some instances. It obscures the procedure for laying the foundation of electronic evidence before its admission into evidence. Moreover, it ignores the role of digital evidence professionals in handling electronic evidence. Furthermore, the rulings of the High Court of Tanzania on the authenticity and admissibility of electronic evidence are conflicting. It is suggested that the law ought to provide for a procedure for laying the foundation of electronic evidence, and a digital evidence professional be involved in cases involving electronic evidence. Index words: Tanzania; electronic evidence; admissibility; legal issues

An approach to the judicial evaluation of evidence from computers and computer systems

The evaluation of evidence derived from a complex computer system is difficult: past experience of reliable operation in general is an uncertain guide to the value of specific evidence in a particular case. By setting the evidence in question in the context of the complete transaction to which it pertains, and tracking the system’s processing path for the transaction, better guidance may be obtained. Difficulty in elucidating the processing path may itself cast doubt on the evidence in question. Index words: complexity, computer, evidence, path, transaction

Admission of electronic evidence

In its provision for the admissibility of electronic evidence, the Kenyan Evidence Act includes two apparently conflicting provisions. Under section 106B, the Evidence Act prescribes conditions for admissibility, and uses the concept of a certificate as a means of proof of authenticity. On the other hand, under section 78A, electronic evidence is admissible, with no mention of the use of a certificate. There has been conflicting jurisprudence as a result. This paper proposes that section 106B ought to be repealed to give way to the section 78A presumption of admissibility due to numerous issues associated with the certificate. Index words: Kenya; Evidence Act; conditions for admissibility; electronic evidence; conflicting jurisprudence; Commonwealth Model Law on Electronic Evidence

Brake systems: a mind of their own

Brake systems fitted to current production vehicles are not the relativity straightforward hydraulic systems that many people expect. Rather they have evolved into complex systems which are on their own deliberately capable of affecting the behaviour of a vehicle. Crucially they depend on computers, software and electronic sensors to allow them to form a model of how the vehicle is expected to behave on the road and how it is actually behaving. Like any artefact they can, and do fail. This paper provides a high-level overview of the braking systems currently in place, how these systems act and present some examples of how they have failed in practice. Index words: vehicles; vehicle electronics; electronic control; software; brake systems; failure modes

Recommendations for the probity of computer evidence

There exists widespread misunderstanding about the nature of computers and how and why they are liable to fail. The present approach to the disclosure or discovery and evaluation of evidence produced by computers in legal proceedings is unsatisfactory. The central problem is the evidential presumption that computers are reliable. This presumption is not warranted. To this end, recommendations are proposed to rectify this problem with the aim of increasing the probability of a fair trial. Index words: electronic evidence; computer systems; disclosure; discovery; recommendations for judges; fairness of legal proceedings

The use of historical call data records as evidence in the criminal justice system – lessons learned from the Danish telecom scandal

Historical call data records (HCDR) are frequently used as evidence in criminal trials. However, several inherent uncertainties are associated with HCDR data, and, additionally, errors may occur when law enforcement processes the data. In Denmark, processing errors were introduced into HCDR from 2010 until 2019. The Danish authorities are currently reviewing more than 10,000 criminal cases in order to secure a fair trial. This article conducts a socio-technical analysis of the Danish telecom scandal, which shows that, in addition to the processing errors highlighted, sources of error are related to competence, cognitive factors and inadequate quality management. Index words: Denmark; criminal law; call data records; uncertainties; prosecution processing errors

Case translation: Belgium

4 februari 2020 P.19.1086.N/1, Hof van Cassatie, tweede kamer (Court of Cassation, second chamber), 4 February 2020 Belgium; encrypted data; right to silence; refusal to reveal key to authorities; criminal offence; article 6(2) European Court of Human Rights

The Post Office Horizon IT scandal and the presumption of the dependability of computer evidence

The Post Office Horizon scandal attracted my interest because of my extensive experience in IT audit and software testing. I have worked on fraud investigations, and also on developing and testing complex financial systems. The Horizon case covered many issues of which I have experience. I was dismayed at the Post Office’s poor control over their systems and their unprofessional conduct in investigations. However, the presumption of computer dependability, which both they, and the courts, relied upon to secure convictions, truly shocked me. All of my experience has taught me that this presumption is naïve and unjustifiable. This is a personal response to the Post Office Horizon scandal. Index words: Post Office Horizon scandal; fraud investigations; poor control; presumption of computer dependability

The application of forensics examination in crime-related prosecution

The increased use of the internet and information technology in Nigeria has led to the need to utilize technologies to identify and prosecute perpetrators of crimes. In today’s world, the application of forensics in the investigation and prosecution of crimes is essential. This paper critically examines the effect of the absence of a coordinated standard for the execution and presentation of forensic investigations utilizing electronic evidence in Nigeria. It examines the nature and scope of the various forensic models proposed, while questioning the appropriateness or otherwise of their usefulness in criminal prosecutions. The paper suggests the need for the regulation of forensics practices, the provision of standards, and a universal model for the successful prosecution of crimes in Nigeria. Index words: Nigeria; forensic examination; digital crime; standardization

Editorial

Editorial Vol 17: 2020