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Expert Report Questions The Validity Of E-Mail Evidence

by Robin Pilgrim,, London

29 August 2003

E-mail evidence is playing an increasingly important part in judicial proceedings in the UK (and everywhere else), as starkly evidenced this week by the publication of hundreds of government e-mails alongside the Hutton enquiry in London. But a paper recently issued by forensic computing firm DataSec demonstrates the pitfalls involved in using e-mails as evidence without a proper understanding of their origins, and an adequate audit trail to prove the validity of the e-mail.

Earlier this year, Philip Bowles, an expert defence witness from DataSec demonstrated to a judge and jury at Canterbury Crown Court how easy it is for e-mail to be forged: “This case involved an allegation that certain e-mails had been forged to look as if they were sent from someone that totally denied having done so. In the circumstances, the live demonstration showed how any person with a degree of technical knowledge can forge an e-mail.”

When the e-mail was opened in Microsoft Outlook it appeared no different to the paper e-mails that had been offered by the prosecution as evidence. This was despite the fact that the paper copies had been introduced without any digital audit trail to support their authenticity.

Email is signif icantly different from paper mail, says DataSec. In normal use it leaves a digital audit trail. A knowledgeable person can forge parts of that audit trail and the mail itself with relative ease. Verification of that audit trail is therefore essential if best evidence is to be presented. In a case where allegations are made that email was never sent or received, a paper-based copy of an email without that audit trail is significantly devalued evidentially.

While physical evidence has been well understood by the all parties in the court process for centuries, says the firm, email is a non-physical electronic concept whose public perception can be measured in less than two decades. It is created, managed and delivered by a technology that creates as similar an apprehension and bewilderment as does "rocket science" to the majority of people outside of the IT industry .

According to DataSec, it is essential that all parties involved in a court action using electronic evidence are able to understand and appreciate the technical aspects of that evidence. Leading professionals in both the legal and technical sectors must take responsibility for this if ‘best’ electronic evidence is to be presented, understood and relied upon in court.

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