Out-Law / Your Daily Need-To-Know

E-mail evidence needs an audit trail

Out-Law News | 28 Aug 2003 | 12:00 am | 1 min. read

Recent e-mail abuse cases, and evidence provided by e-mails in the Hutton enquiry, show the growing importance of e-mail and other electronic evidence in court. But this evidence cannot be used properly until the police, prosecution and defence fully understand its implications, according to a report by forensic computing firm DataSec.

Earlier this year 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.

The witness, Philip Bowles, explained:

"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.

According to Bowles, "An e-mail will leave an extensive trail on its journey between sender and recipient. This case highlighted the need to produce this evidence. In my opinion, a printout of an e-mail alone is far from sufficient evidence to prove it was sent or received by any particular party."

E-mails appearing on screen, or printed out onto paper, are merely the end product of a technical process in the course of which the e-mail may have been bounced from server to server, often worldwide. An audit trail can show where the e-mail has been, and what opportunity there has been to interfere with that e-mail.

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.

This is of particular importance where a full audit trail is available but it is not shown in court – immediately casting doubt on the electronic evidence itself.

John MacKenzie, a senior associate at Masons said:

"This is a good example of the risks in using any kind of computer generated evidence. With, for example, signed documents, copies are often used, but if challenged the original must be produced. With e-mail there is no 'original' and so the audit will help to defeat any challenge."