Video recording as a piece of evidence

Video recording as a piece of evidence

By Jawad Hussain Aadil, Civil Judge (Islamabad)

Abstract:

This is the most challenging step which is faced by the criminal justice system in present days. Almost every crime of conventional nature from pocket picking to terrorist attacks involve electronic evidence. Our Police is capable but due to lack of resources the required result cannot be achieved. Government policy is hard work instead of smart work. Government is only focusing on structural changes like deputing SHO on an SHO. We need to come with policies based on resources.

All the tiers of criminal justice system are very much dependent and connected with the appreciation of electronic evidence. It is an admitted fact that the legal appreciation of such piece of evidence has become discretion of the court due to incompetent investigation and patchy laws.

Is video recording a piece of evidence?

Domestic Law

Before proceeding with the topic further, we need to know the legal definition of the two words i.e. Electronic and Evidence.

"Electronic" includes electrical, digital, magnetic, optical, biometric, electrochemical, wireless or electromagnetic technology;

(defined under section 2(I) of Electronic Transaction Ordinance, 2002)

Evidence includes:

(i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and

(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence;

(under Article 2(c) of Qanoon-e-Shahadat Order, 1984)

From the available definition of the evidence, we don't find any place for VIDEO RECORDING as a piece of evidence. However, the law has recognized the video recording as electronic form under section 3 of the Electronic Transaction Ordinance, 2002. Interestingly this makes the video recording more sacred then a piece of evidence by saying that it is legally recognizable even in absence of witnesses. But how and what method is to be adopted to make it a relevant fact in absence of witnesses. We need to look Article 164 of Qanoon-e-Shahadat Order, 1984, which says:

  1. Production of evidence that has become available because of modern devices, etc. - In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques.

The legislator was smart enough to exclude the video recording from the domain of evidence as it is more like an admitted fact but we need to make sure only that the source of the fact is well protected authentic and secure.

INTERNATIONAL LAW

INDIAN LAW

The Information Technology Act, 2000 specifically defines video recording as electronic record under section 2(t). The term used in Indian law is electronic record, not electronic evidence. The august Supreme Court of India, held in Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012) the honorable Justice Kurian Joseph, speaking for a bench that included Chief Justice Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier Supreme Court judgment in the 1995 case of State (NCT of Delhi)v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600, popularly known as the Parliament Attacks case. It is needless to mention here that Anvar case was given in the same manner as in 2007, the United States District Court for Maryland handed down a landmark decision in Lorraine v. Markel American Insurance Company .

AMERICAN LAW

In American federal courts, the law of evidence is set out in the ++Federal Rules of Evidence++ . It was held in Lorraine v. Markel American Insurance Company that when electronically stored information is offered as evidence, the following tests need to be affirmed for it to be admissible:

(i) is the information relevant;

(ii) is it authentic;

(iii) is it hearsay;

(iv) is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and

(v) does its probative value survive the test of unfair prejudice?

UNITED KINGDOM LAW

Association of Chief Police Officers (ACPO) use the following 4 guidelines for the authentication and integrity of evidence.

Principle 1: No action taken by law enforcement agencies, persons employed within those agencies or their agents should change data which may subsequently be relied upon in court.

Principle 2 : In circumstances where a person finds it necessary to access original data, that person must be competent to do so and be able to give evidence explaining the relevance and the implications of their actions.

Principle 3: An audit trail or other record of all processes applied to digital evidence should be created and preserved. An independent third party should be able to examine those processes and achieve the same result.

Principle 4: The person in charge of the investigation has overall responsibility for ensuring that the law and these principles are adhered to.

All the basic tests are related to the connecting points, the material is never questioned because if it passes the tests, it will be admissible and have to be appreciated in the manner prescribed.

COMMON DEFENSE

The most basic and common form of defense to deny the admissibility of digital evidence is that it can be altered. It was rightly held by August Supreme Court of Pakistan in case title Ishtiaq Ahmed Mirza etc. v. FOP (Constitution Petition Numbers 10,11 and 12 of 2019),

"The advancement of science and technology has now made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. It must never be lost sight of that the standard of proof required in a criminal case is beyond reasonable doubt and any realistic doubt about an audio tape or video not being genuine may destroy its credibility and reliability."

In 2002 a US court ruled that "the fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness" (US v. Bonallo, 858 F. 2d 1427 - 1988 - Court of Appeals, 9th).

CHALLENGE:

A person is seen in the video with following details:

  • stealing a vehicle from outside the house of the owner

  • Owner name and house address confirmed

  • Day light occurrence

  • Face of the accused/culprit recognizable

  • Recorded from a home CCTV on the memory card

  • Not connected with any network

The proposition is straight and simple but in legal practice this is an unseen occurrence. In order to prove this case every tier of criminal justice system has challenges which are:

  1. Investigation: collection of evidence: Procedure adopted for the collection of the data of the memory card.

  2. Presentation of electronic evidence on police file: The main step which connects the crime with the criminal is the presentation of evidence. The quality of presentation will definitely effect the level of appreciation of the evidence.

  3. Appreciation of such recorded Video: This is the place where discretion comes into play. Only the quality of presentation of evidence can affect the appreciation level. There is no yardstick to measure the discretion but there are certain measures which can improve the appreciation of such recorded evidences.

SOLUTION TO THE CHALLENGE?

Defense is always looking for loop holes to tear the well knitted net of evidence of prosecution. A small hole in the net can become reason for acquittal of the culprit. In the given scenario, the investigation and prosecution need to devise a mechanism for collecting data from the available data medium.

Different prosecutions came up with different solutions. Some took a print of screen shot of the CCTV in which the accused can be easily seen and identified. And on the basis of that screen shot the accused is nominated and connected with the occurrence. Others after identifying the accused, arrest him and make effective recovery and on the basis of recovery and other circumstantial evidence connect the accused with the occurrence. There might be many ways to do the same thing but only thing matter is that no bogus witnesses should be placed as witnesses in the memo's. The reason is that the memo's are the most important documents while dealing with electronic evidence and if the witness of the memo is intact, then the material of the CCTV footage will surely be appreciated and will be considered. The memo's are somehow the piece of thread through which the CCTV footage is knitted in the web of prosecution case as a piece of proof against the accused person. If the thread is not strong, the proof will not be considered part of the net. Obviously it will make place for the discretion of the court to play its part. Finally, It will be the discretion of the court to appreciate the same proof with its own standards.

CONCLUSION

The decision of High Court of Judiciary in Hopes Case 1960 Scots Law Times 264. The Court laid at 469:

"Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."

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