The emerging areas of digital evidence

The Evidence Act was amended some time back to allow for the production of digital and electronic evidence. A lot of evidence is now collected digitally as most of day to day interactions are digital by nature. Section 78 and 106 of the Evidence Act allow for digital and electronic evidence to be presented in court provided that the same meets some requisite thresholds set out in the Act.

Data privacy on the other hand is one of the rights provided in the 2010 Constitution. According to Article 31 of the Constitution, a person’s personal communication should not be infringed and their personal property should not be seized or possessed.

One challenge that investigators and litigators face when seeking to introduce digital evidence, is how to ensure that collection of such evidence does not breach the constitutional provisions of privacy.

When a litigator is presenting evidence that is adverse to another party, he must establish that privacy rights were not breached. This is especially the case like economic crimes and corruption, where investigators have a duty to produce legally obtained evidence. For example one cannot just produce phone transcripts without a court order.

In most cases, investigators will require a court order to allow them to seize or search ICT equipment that could be hosting adverse evidence.

This was the case last year when the Capital Markets Authority (CMA) obtained a search warrant against senior officials of a listed company allowing it to seize personal mobile phones, laptops and desk top computers to enable it collect digital evidence.

It is therefore important to ensure that there are no arbitrary searches of people’s personal property or communication as this is illegal.

The position on digital evidence presented in breach of privacy rights has been varied. There have been two main approaches as to how such evidence should be handled. This is evidence that is presented in court in disregard of a person’s privacy rights. For example phone transcripts obtained through arbitrary search. The two main approaches adopted by the court include mandatory inclusion approach and the mandatory exclusion approach.

In one approach, the court would in certain circumstances allow such illegally obtained evidence if that evidence is relevant to the facts of the case. In this approach the court allows such evidence to be included if it would shed some light on a fact before the court. This means the evidence illegally obtained would be crucial in establishing the validity of a fact. The court would not concern itself with how the evidence was collected.

In the second approach, the court would not allow illegally obtained evidence to be admitted especially if the same breaches a party’s constitutional rights. If a party can show that the privacy of their communication was infringed upon and that the evidence presented breached his privacy rights then such evidence can be expunged from the record.

Digital evidence will become a more common form of evidence given today’s digital age. It is prudent to adhere to the law in its collection and production.