A Reflection on Practising Law in the (British) Internet Society Part 1: Mobile Phones

Digital Strip Searches

The Disclosure Process

A Solution

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.)

Do Right & Fear No-one

A Reflection on practising Law in the (British) Internet Society

-- By JakeTaylor - 06 Dec 2019

The Issue

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.

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.

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.

CCTV

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.

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.

Mobile Phones

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.

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.

Sexual Offences

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.

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.

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”.

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

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”.

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