A Draft for the Digital Dilemma: The E-Evidence Convention

This blog post is by Nikolaos Trigkas, a third-year Ph.D. candidate.

  1. THE FIRST CONVENTION ON E-EVIDENCE

The legal question of how to treat probative information generated or stored in electronic form has a relatively short history, but is becoming increasingly significant. Interest in the new possibilities and challenges regarding the introduction of electronic evidence at trial is growing, awareness is spreading and dialogue is beginning to unfold. In 2016 an innovative cross-disciplinary initiative was launched by Stephen Mason, barrister and IALS associate research fellow, in the wake of concerns about the nuances of e-evidence such as intangible form and changeable nature. He initiated a Convention on Electronic Evidence, which was the first attempt to systematically treat the subject of digital evidence.

The obvious lack of standardised processes regulating the admissibility (and particularly authentication) of electronic evidence was the driving force behind the recent project. According to Mr. Mason, who has provided training to judges and lawyers in matters relating to electronic information across the globe, the need for accepted guidance is emerging. In the absence of a systematic scheme to commence development of such a convention by (inter)national organisations, a private initiative relying on scholars from various countries would be helpful. Mr. Mason reasoned as follows:

I have spoken so many times (especially in Europe) about electronic evidence, and spoken to so many people, and the same question keeps on being raised: why is there no Convention on Electronic Evidence being devised by the Council of Europe or the UN?

The ‘Draft Convention on Electronic Evidence’ workshop (supported by the Information Law and Policy Centre) took place at the Institute of Advanced Legal Studies on 20 May 2016. The workshop was designed to take forward the discussion outcomes from a previous similar conference held in Zagreb in April 2016 and aimed to provide a platform to facilitate a fuller understanding of the complex concept of electronic evidence by judges and lawyers. In essence, the event was created to urge that electronic evidence be viewed in a different way to documentary evidence and, more generally, the traditional forms of proof.

After a consultation period, the final version of the draft was published in the latest issue (2016) of the Digital Evidence and Electronic Signature Law Review. In the preamble of the draft, it is explained that the existing rules – tailored to the characteristics of paper evidence – cannot always apply to electronic information. Although this critical matter has not yet been settled at international level, it is becoming increasingly clear that e-evidence has a unique nature. Because of its complex character, some rules (e.g. the authentication rule, the best evidence rule and the hearsay rule) appear to be irrelevant or inapplicable to such evidence.

This brave initiative should be warmly welcomed by modern legal professionals as the first convention dealing with the treatment of electronic evidence in civil and criminal trials. The purpose of the initiative can be described as ambitious, but even so it is realistic, given that the contributors to it have carefully taken account of legal and technological considerations. Additionally, the final text of the Convention is based on a consensus between international scholars, as the provisions have been excluded that were not generally agreed. Time will tell, however, whether and to what extent this project will bring about a landmark change in the way legal professionals perceive e-evidence.

  1. THE IMPORTANCE OF THE CONVENTION

It should be acknowledged that this initiative has already made a significant contribution to legal scholarship in terms of innovative thinking. It is commonplace these days to say that the current procedural rules are still in force, simply for the reason that they sufficiently serve their purpose. While this is true in some cases, it is debatable whether the old legal doctrines can accommodate technologies underlying electronic records as a rule. In fact, it can be argued that existing rules give short shrift to the critical question of authorship, when it comes to complicated information in electronic form. The initiative offers a new insight into the issue, as it recognizes that the specific nature of electronic evidence poses new challenges to legal practitioners.

With regard to the treatment of electronic evidence at the admissibility phase, two totally opposite lines of thought have been supported in the international literature. These were aptly described by van der Merwe in his analysis as: a) the ‘paper’ approach; and b) the ‘protocol’ approach.

The ‘paper’ approach stipulates that all the traditional rules of evidence fulfil their purpose, on the condition that they can be applied mutatis mutandis to electronic evidence. Without any doubt, this approach prevails in the European Union and the United States, where evidentiary rules generally apply with equal force to any type of proof.

The ‘protocol’ approach acknowledges that we are now faced with forms of evidence essentially different in nature from those traditional forms, which constituted the basis of the law of documentary evidence. Therefore, we need to find alternative digital guarantees, namely internationally agreed protocols, concerning the authenticity of the electronic information that a proponent may seek to introduce at trial. This approach has so far failed to gain significant traction among legal practitioners, who have no choice but to follow the current framework governing the status of e-evidence.

  1. CONCLUSION

It is clear that the equal treatment of traditional and electronic evidence represents something of a paradox, given that the latter can be altered or fabricated with relative easiness (as the Hon. Alan Pendleton pointed out).

The Draft Convention on Electronic Evidence marks a shift to a new legal thinking, which seeks to bring traditional legal principles into line with the modern technological environment. The Convention seems to follow the ‘protocol’ approach in that it seriously takes into account not only the legal aspects, but also the technical details of the cases under consideration. In this sense, the Convention may serve as a useful starting point for legislative work, as the old rules may sometimes be inapplicable to electronic evidence. Should legal professionals’ understanding of sophisticated technology become more complete, it can be expected that the convention will inspire changes in rules in the light of technological evolution.

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Presenting as an Integral Part of Research

This blog post is by Dave Lorimer, an LLM by Research candidate at the University of Aberdeen. In this post – the second this blog has hosted from a postgraduate student – he reflects on a recent interdisciplinary event at the University of Aberdeen.

The inaugural Granite Symposium on 25 April 2016 provided a good opportunity to present some postgraduate thoughts. The event allowed discussion of interdisciplinary issues, in particular where the social sciences meet technology, with a view to publication in a special edition of Granite Online Journal .

The keynote presentation by Prof Karen Kelsky was an enlightening review, albeit a very trans-Atlantic one, of where to go after ‘grad school’ and how to get there. Tricky questions for many of us. There was some thought-provoking advice about pacing the publication of research and how to tie it into an academic career.

For my part I presented on my latest numerical analysis on aspects of the criminal law. Having had an interesting and varied career as an engineer in the oil and gas industry, my early retirement (at a time when ‘bean-counting’, diminishing local reserves, standardization and ‘business modelling’ was taking much of the creative fun out of engineering) allowed me to pursue a life-long fascination with the law. It struck me in the course of my LLB that there were a number of analogous processes in the logic of the law and the logic of engineering. In fact, much of the work towards the end of my engineering career was primarily determined by a Law Lord.

The technical quality of Lord Cullen’s report on the likely chain of events leading to the Piper Alpha disaster would have made any experienced engineering professional proud. His review and recommendations on the use of Quantitative Risk Assessment (QRA) as a predictive tool in industrial safety management, for me at any rate, now resonate with a defeasible approach (as often used in artificial intelligence work) to assessing the ‘unknowable’ using the logic of numbers in a legal context; QRA predicts the likelihood of possible future events in order to identify the optimum approach to the best outcome – so why not seek to apply the same logic to the understanding of past events? So far I’ve worked on four discrete numerical applications within the area of criminal law. I presented separately on the first three at Strathclyde and Aberdeen, namely: 1) the risk reducing nature of corroboration with respect to wrongful conviction; 2) a numerical view of the criminal process as a chain of events; and 3) an exculpatory assessment of defence witness reliability in a murder case-study. The Granite Symposium allowed the opportunity to present on the fourth: a numerical assessment of information transfer by witnesses at trial. Each time I present, not only do the ideas under consideration become better understood but new facets are revealed in the process of receiving feedback from the audience, which ultimately strengthens and further develops the thinking.

Information transfer by witnesses at trial

At the heart of the witness accuracy model is some Enlightenment philosophy that I gleaned during the relatively brief study of McCoubrey and Whyte’s Jurisprudence as a law undergraduate, in conjunction with a curiosity about the history of philosophy as integrated with fiction by Jostein Gaarder and Robert Pirsig, plus a schoolboy interest in the writings of Jean-Paul Sartre. The Existentialist/Kantian view that what we see is not what we think we see and that the real world is unknowable is readily transferable to the analysis of the perceptive capacities of a jury. Information transfer from crime to witness to jury in the course of a trial may be broken down into seven stages and High (> 95%), Medium (50% mid-range) and Low (< 5%) rates of information transfer accuracy can be applied at each stage to give an overview of the ultimate extent of ‘erosion of truth’ in the picture as perceived by the jury. The seven ‘Kantian’ stages can be broken down as follows;

Event occurs – Witness perceives – Witness reflects – Witness recalls – Witness testifies – Jury perceives – Jury reflects.

The idea of ‘reflection’ after perception comes from David Hume (the philosopher, uncle of the institutional writer Baron David Hume) as do a number of other ‘Kantian’ concepts (the possibility that Kant believed he had a Scottish grandfather makes one wonder if he had read Burns too; ‘To see oursels as ithers see us’, ‘A man’s a man for a’ that’  and ‘That sense and worth o’er a’ the earth’ are well reflected in Kant’s moral philosophy; in this author’s humble view, they represent the Scotsman’s equivalent to Kant’s Categorical Imperative and its various formulations).

The surprising thing was that this ‘Kantian’ breakdown of stages raised the majority of feedback after the Granite Symposium presentation, in particular from researchers variously asking about applications with regard to:

  • advertising design development processes;
  • studying the history of theology;
  • computer science and the possibility of empirical work on the seven stages; and
  • neuroscience research, raising the question of whether Magnetic Resonance Imaging (MRI) scanning of the brain (known as functional MRI or ‘fMRI’) could lead to real-time assessment of information transfer accuracy at any or each of the seven stages. The state of the art with respect to the current size of MRI machines presents obvious practical issues with this but the idea that one day witnesses (and even jury members??) could wear an MRI scanner as a hat, may ultimately make polygraph (lie-detector) machines as obsolete and humour-inspiring as the wind-up gramophone.

The initial perception that this fourth and latest numerical application was of little more than scene-setting or background interest turned out to be wrong, at least as far as the Granite Symposium feedback is concerned. Some interesting ideas have been generated and the strength of the analysis – as in many if not most numerical assessments of this type – is not necessarily in the final arbitrary or defeasible numbers generated. As with experience in numerical risk analysis in industrial projects, much of the real value is in the analytical process of categorising inter-related parameters and the comparison of a range of inputs from a cause and effect perspective, as well as development of deeper understanding of the overall process and identification of key issues and new ideas. This is at the heart of a reasoning process and the numerical approach may be seen as a thread that binds or a link that chains – or even a kernel that continues to grow.

As far as academic presenting is concerned, any form of peer review – which includes presenting and discussing the issues with people of sound intellect and experience, plus any ‘digital dialectic (reasoning)’ such as blogging – also becomes part of the research and reasoning process. In fact, with respect to the research under consideration here, it seems at first thought perhaps a pity that jury members no longer get to question witnesses directly… but that’s another story.

Granite Q&amp;A with Karen Kelsky
Photo Credit – Granite: Aberdeen University Postgraduate Interdisciplinary Journal

Senkakus/Diaoyus: Are They Islands? Yes, No, Maybe

This blog post is by Constantinos Yiallourides, a PhD Candidate at the University of Aberdeen. In this post – the first this blog has hosted from one of our postgraduate community – he considers a point of international law linked to his research. A full biography can be found below.

The Senkaku Islands or Diaoyu Islands, as they are respectively known to the Japanese and Chinese, is a small group of offshore geographical formations lying at the southwest edge of the East China Sea. They are composed of the Uotsurijima/Diaoyu Dao Island and four other smaller islets and three barren rocks; their land amasses to just over six square kilometres. Despite the fact that they are extremely small (the largest island is about 4 square kilometres long by 1.5 wide), they all seem to form natural areas of land, permanently above water at high tide. All the islands are currently uninhabited.

Interestingly, these small, isolated and uninhabited offshore features have served as the most persistent and explosive bone of contention between China and Japan, since the 1970s, when the two countries formally expressed their maritime claims over the islands. The reason lies not on their economic value per se, as no economic activities are currently being conducted on the islands, but rather on their strategic location near areas where substantial quantities of offshore oil and gas are thought to be present. Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to which both China and Japan are parties, offshore features qualifying as islands in a legal sense, can generate full maritime zones in the same way as other mainland territory. As a consequence, the significance attached to these islands stems from the perception that their possession can potentially generate extensive areas of maritime jurisdiction capturing the vast marine resources in the surrounding waters and seabed. This close interrelation between an island’s maritime generating capacity and competition over surrounding energy resources has also been evident in the territorial dispute between Argentina and the UK over the Falklands.

Article 121(3) of UNCLOS stipulates two very important conditions for an insular formation to qualify as ‘island’: to sustain ‘human habitation’ or ‘economic life of its own’.  Yet, how can one say with any certainty whether a feature is capable of sustaining human habitation or have the capacity to generate economic life of its own? More importantly, can there be a category of island, in a legal sense, that can have economic life of its own but cannot sustain human habitation, or vice versa?  Finally, would an island which had once been inhabited but have become uninhabited over time, due to persisting adverse economic conditions for example, be deprived of its legal status?

First of all, Article 121(3) refers to the capacity of sustaining human habitation, not simply habitation. Capacity for habitation is arguably a broader condition than actual habitation, meaning that an island must not necessarily be, or have once been, inhabited to be considered as such. The key is to prove the island’s ability to sustain habitation. Clearly, the first objective step to prove this ability is to look at the island’s present or past population. Even though it is not necessary for an island to actually be or have at some point been inhabited to meet the ‘sustain human habitation’ condition, it will certainly be easier to argue that an island can actually sustain human habitation if it has once been inhabited. In addition, the fact that the given population has historically made use of the surrounding waters, e.g. for fishing and mining, may be used to establish the island’s legal status. On this analysis, the St Kilda group of islands off the west coast of Scotland would still be thought of as an island, even though the population left over eighty years ago.

Assuming that there are no solid indications that the island is, or used to be, inhabited, the second practical step is to examine the island’s capacity to sustain human habitation. In that regard, the most vital needs for human survival are arguably food, fresh water, and shelter. Therefore, it may be suggested that the existence of cultivable soil, fresh water and enough space for shelter are the three most critical features of an island that has the ability to sustain human life.

The second requirement provided in Article 121(3) concerns the island’s capacity to ‘sustain economic life of its own’. Similarly to the first requirement, the phrase ‘able to sustain’ suggests that the existence of economic life is not necessary but rather is the presence of resources that can sustain such economic life that is crucial to qualify as island proper. Be that as it may, it is submitted that if natural resources, e.g. fisheries or minerals, are known to be present on the island is enough to reach the threshold of Article 121(3). This view finds some support on the Judgement of the Supreme Court of Norway in the case Public Prosecutor v Haraldson and others, where it was held that the existence of physical opportunities on Abel Island for sustaining some kind of economic life, namely bear hunting, were considered enough to grant the feature the legal status of an island.

Further to the above, the phrase ‘of its own’ indicates that the island itself must be capable of generating the source for its economic life. However, nowhere in the discussions that took place at UNCLOS III was it mentioned that islands must have self-sufficiency. As a matter of fact, it would not always be possible for any state, whether continental or island, to achieve self-sufficiency at every level, whether analysing that from the perspective of (for example) the economy, energy, food or agriculture. Some external support to fully realise the economic potential of an island must be deemed permissible to that end.

Turning now to the contested Senkaku/Diaoyu Islands, it becomes evident that the application of UNCLOS provisions on the matter raises several important questions.

Though there have been some reports of fishermen living occasionally on the larger island of the group, e.g. to find shelter during storms, none of the Senkakus/Diaoyus has ever been permanently inhabited, a fact which may indicate their incapacity to sustain stable human habitation. Nonetheless, despite the absence of stable human habitation on a given island, its intrinsic capacity to sustain human habitation should not be totally excluded. In order however to prove such capacity, it is crucial to demonstrate the presence of other factors on the island, such as fresh water, cultivable soil and enough space to build shelter. In that regard, while some vegetation is reported on the larger island of the group, it seems doubtful that any of them has cultivable soil to enable the production of food to sustain permanent human habitation. Further, none of the Senkaku/Diaoyu Islands seems to have readily accessible fresh water.

The next, and perhaps more complicated question, is whether the Senkaku/Diaoyu Islands satisfy the other requirement stipulated in Article 121(3) UNCLOS, namely, to be capable to ‘sustain economic life of their own’. Would fishing and production of oil from the surrounding waters meet this requirement? The fish stocks in the Senkakus/Diaoyus area are reportedly very significant. The same holds true for hydrocarbon resources in the surrounding seabed. As a consequence, it can be reasonably assumed that the area could potentially sustain an economic life if the surrounding seabed and superjacent waters were to be commercially exploited.

The question which then arises is whether this form of economic life could be considered to be generated by the island ‘of its own’ or if the island plays only a minor role in such economic activities. To that end, some commentators have asked whether it is sufficient for uninhabited islands, such as the islands in question, to have enough strategic economic value, e.g. due to their adjacency to valuable seabed resources, even if they have to import food and supplies from external sources. In other words, can a tiny, isolated and uninhabitable feature be considered as an island simply due to the fact that vast amounts of commercially exploitable hydrocarbon resources are known or suspected to be present in its proximity?

If it is accepted that hydrocarbon resources can justify the requirement of ‘sustaining economic life’ this means that a barren rock could potentially qualify as an island, thus unlocking a bigger maritime space, simply due to the proven or plausible presence of such resources. However, imagine the legal implications if the said hydrocarbons prove to be of lesser quantity or quality that initially expected, hence failing the ‘economic life’ test. Could it ever be admissible, under international law, that the legal status of an insular formation, and the associated maritime entitlements, could be determined solely on the basis of the commercial success, or otherwise, of the resources to which the feature is believed to be adjacent?

Ultimately, it is not altogether clear whether Senkakus/Diaoyus can be classified as islands in a legal sense. The general assumption is that none of the features would be capable of sustaining human habitation or economic life of their own, being very small, with no natural source of water, and very limited vegetation (mostly palm trees). However, any attempt to precisely define the conditions stipulated in Article 121(3) UNCLOS, namely human habitability and economic sustainability, and their application to Senkakus/Diaoyus, must, inevitably, involve a discussion on the functions of technology and economics. By way of example, the reported lack of fresh water on the islands can be immediately overcome through the use of seawater desalination technologies which are increasingly used by states and private corporations to produce fresh water suitable for human consumption or irrigation in places where fresh water is very limited or absent. In addition, Rainwater harvesting (PDF) technologies may be used to collect, store and conserve fresh water, in places where there is no surface water or where groundwater is inaccessible or unfit to drink. Moreover, in relation to the reported absence of cultivable soil on the Senkakus/Diaoyus, greenhouse structures are well known for their ability to effectively bypass shortcomings in the quality of the soil or poor weather conditions and can thereby enable the harvesting of crops or plants even in marginal environments. Ultimately, how can one argue with certainty that an offshore feature cannot ever be inhabited in an age when technology has made it theoretically possible to sustain human life in space stations on Mars?

All these questions lie at the heart of the Japan/China boundary disputes, and they are questions that matter. After all, they have the potential to cause serious discord among neighbours and act as a trigger for military confrontation.

Biography

Constantinos Yiallourides is in the third year of his PhD, entitled ‘Joint Development of Offshore Oil and Gas Resources: The Way Forward in Disputed Regions’, which investigates the impact of international maritime boundary disputes on the commercial development of mineral deposits found in contested waters. Recognising the complexity of such disputes, his research examines the legal and commercial settlement mechanisms which would allow the coastal States involved to overcome their boundary disputes and exploit their disputed, or transboundary, marine natural resources in a peaceful and coordinated manner. Constantinos’ research is funded by the Arts and Humanities Research Council, UK.

Constantinos was the Managing Editor of the 2015 edition of the Aberdeen Student Law Review (ASLR) and the Vice-President of the European Law Students’ Association (ELSA Aberdeen).