Evidence on smartphones, in photographs and on social media

Today brings us news of a criminal prosecution, for rape, which was withdrawn at trial when a newly-instructed prosecuting barrister first uncovered data on a phone which destroyed the prosecution case. The police knew of the information, indeed had it in their possession, but decided against producing it, allegedly on the ground that they had been told to minimise the expense of disclosure.

You get the story from the Times article here (£).

It seems a good opportunity to go briefly over some of the civil cases in which evidence from smartphones, in photographs, or on social media has been relevant. These are a few of the ones I have written about.

First, a picture of the information stored by default with an iPhone picture:

 

Metadata / EXIF data in photographs

Let’s start with a shipping case to show that evidence of this kind can be extremely important in commercial matters and not just in smaller cases. The case is Kairos Shipping Ltd & Anor v Enka & Co LLC & Ors [2016] EWHC 2412  and my article is headed Photographs and their metadata help scuttle a shipping insurance claim. The evidence included photographs taken of a ship as it sank. The metadata / EXIF (Exchangeable Image File) data of the photographs was not produced until the eighth day of trial. On seeing it, the naval architects significantly changed their view of the evidence. The judge said that the evidence was relevant to all of the main issues to be decided. He concluded that the ship had been scuttled.

In addition, the unsatisfactory evidence about the disclosure of the photographic metadata led the judge to conclude that he must treat all of the captain’s evidence with caution. In other words, the fact that the evidence had to be dragged out of the witness was as important as the content of the evidence itself.

Illness claim disproved by Youtube videos

It is important for lawyers to know if there is material lurking somewhere which contradicts evidence given by their own clients as well as by witnesses for the opponents.

In Cirencester Friendly Society Ltd v Parkin [2015] EWHC 1750 (QB) (I wrote about it here), Parkin’s claim that he was disabled was undermined by Youtube evidence of him leading an active life – it was not so much “lurking” as publicly available in clear sight.

The judge said: “Nemesis overtook Mr Parkin most dramatically because, like so many people nowadays, in particular those who seem minded to seek to perpetrate frauds, he seemed incapable of keeping off the Internet and sharing the true nature of his activities through social media”.

A nemesis of a different kind would await a lawyer (on either side) who neglected to establish that such evidence existed.

LinkedIn evidence points to shadow directorship

This evidence on social media doesn’t have to be conclusive to be significant. It may, when added to other factors, point in one direction or another.

In Green v Marston & Anor [2016] EWHC B11 (Ch), a company in liquidation had made payments which were considered improper – my article is headed LinkedIn entry as evidence of shadow director status. The point at issue was whether a Mr Lochner ought to be liable for those payments. His LinkedIn profile, as well as his business card, described him as Corporate Finance Director, and he was held to be a shadow or de facto director liable to the liquidator for the payments.

At least check the photograph’s date

You don’t necessarily need anything very sophisticated to undermine the evidence of a photograph. My article The claimant who relied on photographs taken before the accident is about a claim against a local authority by someone who said he had been injured because of the state of the pavement. His photograph purporting to show the place where he had fallen was in fact taken nine days before the date of the alleged fall.

__________

This is enough, I think, to show the importance for lawyers of asking about the existence of data, whether publicly available or on social media, which may prove or undermine claims made by or against their clients. As I write, lawyers on Twitter are debating whether the Crown Prosecution Service should take or share the blame for the failure to produce the evidence in the rape case. A lawyer in a civil case might be excused if his client or witnesses deliberately lie or conceal disclosable information when asked for it. A failure even to ask about possible sources of information, whether supportive of or adverse to a claim, must clearly be a breach of professional obligations.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Evidence, Multi-media discovery. Bookmark the permalink.

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