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Expert Witness Legal News

Possession: nine points of the law?

More and more frequently, solicitors are taking defence instructions where the prosecution evidence is computer based. It is often the case that a solicitor will engage an expert with only the vaguest notion of what the expert’s instructions should be. I have even, in the past, been asked to help draft my own instructions!

I have worked as a computer forensic expert for the defence in over 100 cases which involved creation or possession of indecent images of children on a computer. I have also worked in cases involving computer-based evidence relating to counter-terrorism, murder and fraud, although in these matters computer-based evidence tends to be peripheral rather than fundamental to the case.
One of the factors in cases such as indecent images, where the prosecution case is based solely upon the findings of the prosecution computer expert, and which is almost universal, is the lack of in-depth investigation by the prosecuting authorities. Very often the prosecution case is based simply upon the assumption that: “The images are on your client’s computer, therefore he is guilty.”

In my experience, the truth is often very far from that. The language of the indictment usually tends to be somewhat emotive, using words such as ‘accessing’,‘making’, ‘downloading’ and ‘saving’, all of which imply a conscious action on the part of the computer user to select and keep images. However, many such cases involve the computer user being redirected to a child pornography website without his having any choice in the matter. Once a web page is opened the contents, including pictures, are written to the computer hard drive. The indictment will damningly read that ìhe downloaded them”.

A broader investigation of the computer evidence is always likely to help the court and can do the defendant no harm. How did the images get onto the computer? When? Why? Did anyone else have access to the computer? Could the images have got onto the computer without the client’s knowledge?

Even if they are on the computer, does the client have access to them? Are they viewable images or tiny parts of a web page? Are they adverts that popped up on their own? What are the dynamics of the case? What else is on the computer that the prosecution did not feel was relevant?
As an example of the importance of the defence expert taking up these lines of enquiry, I recently acted in a case in the South where the defendant was charged with making and possessing indecent images of children. He flatly denied the charge.

The images were certainly on his computer, but I decided to approach the matter from a different angle. I was able to reconstruct the internet sessions, including the times, during which the images had been written to the hard drive. For some of those sessions the defendant had an alibi.
Armed with this information his defence counsel elicited from his stepdaughter under cross examination an admission that she had downloaded the images herself to incriminate her stepfather.

On another prosecution, brought about as a result of the infamous ‘Operation Ore’, I was able to demonstrate that the client’s credit card details had been stolen and used to access a child pornography site from the USA when the client was clearly in the UK at the time. My client was lucky – 39 of those investigated in the UK under ‘Operation Ore’ committed suicide.

My advice, then, when instructing a Computer Forensic Expert is to choose an experienced expert who is not only accomplished in his field, but who can demonstrate a track record of creative investigation as well.

• Steve Lewer is a computer forensics consultant for Digifor Ltd. ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ). He is a member of the UK Register of Expert Witnesses and the Society of Expert Witnesses. He is also a technical security analyst for the nuclear and merchant banking industries.

Energy firm to pay fire compensation

Scottish law firm Brodies LLP has reported a case concerning a fire in Paisley which destroyed two buildings and a gable wall. The seat of the fire was identified as an electricity meter cupboard.

The tenants and owners of the properties brought an action against Scottish Power, the electricity suppliers. The decision by the court was in favour of the claimants and clarifies when a failure to comply with a duty imposed by legislation can give rise to liability for damages.

The issue before the court was whether or not the claimants were entitled to rely upon the Electricity Supply Regulations 1988 as a basis for an action for damages or compensation. The regulations place various duties on electricity suppliers, including an obligation to ensure that works are installed and maintained so as to prevent danger (so far as is reasonably practicable).

In defending the claim, Scottish Power adopted what may be described as a traditional approach to statutory interpretation. Relying upon the earlier case of X (Minors) V Bedfordshire County Council, they argued that the regulations did not give rise to liability for compensation because they did not meet the relevant test. The essential requirements of the test are that:
The legislation is for the benefit of a particular class of persons rather than the general public.

Parliament intended to confer on members of that class a private right of action for breach of the statutory duty.

In response the claimants argued, among other things, that the only rule imposed by previous case law was that the court should look for the true intention of Parliament by construing the particular legislative terms in question.

For a fuller explanation of the decision and its implications, visit

Lift injury payout

Thompsons’ Legal Line personal injury branch reports that its specialist personal injury lawyers have recently acted in a compensation claim on behalf of a lift engineer who was injured in an accident at work. He suffered a manual handling injury while installing some machine steel at the top of a lift shaft. It slipped out of its retaining pocket and he held on to it in an attempt to prevent it from falling, sustaining an injury to his neck and shoulder as he did so.

He required extensive medical treatment and time off from work and eventually had to change his occupation altogether, as the long-term injury meant that he was no longer fit to carry out the heavier aspects of his job.

The injured employee appointed expert lawyers to act on his behalf in a claim against his employer. They pursued the case on the basis that the employer failed to employ sufficient health and safety measures to provide him with a safe system of work and keep the risk of injury to a minimum.

Liability was admitted and detailed negotiations with the defendant ensure that the client received an appropriate amount of compensation. During the process his lawyers were able to obtain interim payments to help fund his medical expenses until the case could be concluded. A total amount of damages in excess of £35,000 was secured in respect of his injuries, loss of earnings, medical costs and other losses.

Group therapy could help PTSD after car accidents

Your Witness car accidentResearch funded by the National Institute of Mental Health aims to develop a group therapy programme that can be used by psychologists to treat the thousands of people every year who develop PTSD after traumatic car accidents, according to claims specialist YouClaim.


Not guilty because of mental impairment

Your Witness mcnaughton rulesby Dr JONATHAN SHAPERO, consultant forensic psychiatrist

English law has long accepted the principle that some offenders are not fully responsible for their actions when committing crimes. Edward II declared that under common law a person was insane if their mental capacity was “ more than that of a Wild Beast”.

Last Updated on Thursday, 22 April 2010 10:31