Are criminals going free? A reply

The BCS web poll in March 2006 looked at the question 'Do you think criminals are escaping through IT loopholes?' 81 per cent said yes.

Steve Guest MBCS of Hitecc Data Services (UK) thinks that Joel Tobias raised some interesting and relevant points for discussion, but has another view.

Let me state at the outset that my respect both for Mr Tobias and for his company, CY4OR, is unquestionable. I consider, however, that in this case his arguments for the selection of specialist juries comprise an approach from the wrong direction.

There are very few who would be foolhardy enough to suggest that the present jury system is perfect. The fact remains, though, that after almost eight hundred and fifty years, nobody has proposed any improvement that would be acceptable in a democratic society.

The responsibility of the jury in a criminal court is to decide whether or not a case is proven beyond all reasonable doubt.

The responsibility of the prosecution and defence respectively is to either prove the case or to demonstrate that such doubt exists. It is not the function of the jury member to make their own technical assessment of specialist evidence.

A competent counsel should be able to assess whether a jury has developed an understanding of the evidence as given by witnesses and, if not, to clarify the issues by asking the right questions.

The methodologies employed in the extraction of digital evidence are, indeed, often complex and highly technical. This complexity is also present in many, if not most, technical and scientific disciplines.

Medical evidence, accident reconstruction, DNA profiling, fingerprint analysis and forensic anthropology are but a few comparative examples.

From the bitter personal experience of having spouted techno-babble from the witness box, and then realized that most of the jury were on the verge of sleep, I re-learned what I already really knew: stick to the basic facts and be ready for questions if challenged.

It is arguable that a case that hinges solely on the interpretation of the minutiae of the content of digital media may not be a strong case at the outset.

Using the example of operation Ore, cases based on isolated images in browser cache files were heavily amenable to valid defence challenges and it is questionable as to whether these should have reached trial.
Juries did not, however, seem to have difficulty in understanding that the creation of libraries of child pornography required user intervention or that Google does not come pre-equipped with search terms relating to the exploitation of children.

The whole point of the jury system as it stands is that it reflects our society ranging from the barely literate to the highly educated. In the main juries have a remarkable ability to use common sense in the pursuit of justice.

Once any attempt is made to select juries on the grounds of their technical knowledge, then the basic fairness inherent in the current system begins to be eroded.

It would, in any event, be particularly difficult to establish relevant technical knowledge. IT has become such a large field that an individual with proven expertise in one area may have only the most superficial working knowledge of another.

Who would establish what is relevant knowledge in a juror?

The article says: 'The investigation, interpretation and presentation of evidence that is often derived from binary data is highly complex and usually littered with technical terms and concepts.'

It can be argued in the strongest terms that no report should contain a single unexplained techical term or concept. It has long been my own practice to provide two reports, one providing a straightforward explanation of the evidence in lay terms and one containing full technical detail. 
I would suggest that the issue is not that we need specialist juries for hi-tech cases but that those giving technical evidence be able to do so in clear terms and in a manner understandable to a person of average intelligence sitting on a jury.

Steve Guest is an independent hi-tech crime and forensic computing specialist.  Prior to retirement he was head of the Hi-tech Crime Unit for a large Northern Police Force.

This article first appeared in May 2006 ITNOW.