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R v MA, Unreported, Leeds Crown Court 18 April 2018 - HHJ Collier QC

April 24 2018

Computing & Digital Evidence

On 18th April 2018 HHJ Collier QC made a ruling concerning whether “phone material” should be served as numbered PPE (Pages of Prosecution Evidence) for the purposes of the Litigators’ and Advocates Graduated Fee Schemes, ultimately concluding that they should not be. This comes as a yet another blow to defence solicitors, further restricting their payment for conducting their work.

Those regularly coming across mobile telephone evidence, whether data extracted from the device or network provider records, will have experienced the rapid rise in the volume of data over the past decade as telephones have increased in capabilities. This has led to extraction reports and network records commonly being in the tens of thousands of pages, should they be printed.

HHJ Collier QC suggests certain processes are simple, such as whether one telephone number is in contact with another, and may be completed without reviewing thousands of pages but rather filtering the content. While this may be true as a concept, filtering must be executed with significant care and prerequisite knowledge to ensure the resulting records accurately reflect the intention.

For example, Mark Henderson, one of our mobile telephone examiners, received filtered lists of communications between two parties from each of their respective mobile telephones. Some of the messages present on the defendant’s telephone were not present on the complainant’s resulting in the conclusion being drawn that the complainant had deleted particular messages. Following a complete and thorough examination, all but one of these messages were identified on the complainant’s handset. The error was located to incorrect filtering when the lists of communications were initially compiled by the Prosecution; they had not accounted for the mobile telephone sometimes representing the telephone number with the international dialling prefix of +44 and on other occasions representing the telephone number as a local number starting 07.

Familiarisation of the formats and data and the pitfalls that exist is therefore key to ensuring accurate representations of the data are made.

HHJ Collier QC also makes reference to ensuring confidential or sensitive material which does not impact the case remains private. Keith Borer Consultants has seen a rise in concern over this aspect, particularly when seeking to examine Prosecution witnesses’ telephones. Due to the way mobile telephone extractions occur, it is generally not possible to only extract very specific data, and therefore confidential data may be extracted as part of the examination. Through agreements with the CPS and the Court we have been afforded the opportunity to examine these devices and complete our work to meet the instructions whilst ensuring confidential/sensitive material is not served. By employing an expert such as Keith Borer Consultants, there is a separation from the legal defence team making these negotiations easier to achieve.

Given HHJ Collier QC’s ruling it appears more prudent than ever to instruct an independent expert to reduce the burden of large volumes of telephone data on the defence solicitors and barristers. Keith Borer Consultants can assist you by evaluating this data, reducing it to particular timeframes or communications with particular parties or producing filterable and searchable spreadsheets to reduce your time exploring the data. If this is something we can assist with please do not hesitate contacting Thomas Marryat or Mark Henderson who are based at our Durham office on 0191 332 4999 to discuss your requirements.

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