Academics from Northumbria Law School who are members of an international
research project – Police Detectives on the TOR network – recently gave on-line
presentations about their research to Chinese judges and academics.
Professor Tim J Wilson and the Deputy Head of the Law
School, Adam Jackson, were invited to join the Shanghai Judicial Forum on
Frontier Issues 2021 to discuss digital evidence.
This conference organised jointly by Shanghai No.1
Intermediate People's Court and Shanghai University of Finance and Economics
Law School was held on 22 October 2021. Other international speakers were Australian
and American judges, and academics from Kyoto and Queen Mary University of
London law schools.
Adam Jackson discussed how in England and Wales the criminal
courts oversee whether investigatory powers have been properly authorised and
evidence has been gathered fairly. In doing so he explained how independent and
now judicially led governance of digital surveillance and covert human intelligence
was strengthened as surveillance and evidence captured in cyber space became
increasingly important.
Problems arising from the increased complexity and volume of
digital evidence, however, had highlighted to Parliament and the media long-standing
deficiencies in legal practice, especially over disclosure rules that should protect
the accused person’s right to a fair trial. He had also found echoes of earlier
problems with ‘traditional’ forensics: the difficulties the courts sometimes encounter
when determining the admissibility of scientific expert evidence.
Professor Wilson noted that the exponential increase in cybercrime
had increased the need for international criminal justice cooperation. Where
existing cooperation models had been proven to be effective and robust,
however, he counselled against seeking unnecessary changes to simply reflect subsequent
changes in the volume and significance of cybercrime and digital evidence. He
argued that the resilience of effective arrangements in the face of major
changes could be seen from how the UK Government had accepted that EU-UK
judicial and police cooperation after Brexit depended on its continued
acceptance of the foundational principles and modalities of the EU arrangements
for cross-border legal assistance.
He explained that the strength of the EU model is in how it
had evolved as a holistic structure, including its foundational normative or
human rights principles, the scope for cooperation to commence with offence
identification and end with penal sanctions/rehabilitation, a flexible
interface with widely varied national legal systems, and independent -
especially judicial - scrutiny and governance.
Such an international event results in the extensive sharing
of news, ideas and knowledge. The two Northumbria Law School academics were particularly
interested in what Chinese judges and academics said about congruence between
the General Data Protection Regulation (GDPR) and a Chinese civil jurisdiction
data protection law enacted this year and the approach taken by Chinese courts
in determining the authenticity of electronic data before effectively admitting
it as evidence.
A recording of Adam Jackson’s presentation can be watched
here and Professor Wilson’s here.
