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 involves electronic evidence. Our Police are capable but due to lack of resources, the required result cannot be achieved.
Government policy is hard work instead of smart work. The 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 the 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 a piece of evidence has become the discretion of the court due to incompetent investigation and patchy laws.
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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 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 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 the electronic form under section 3 of the Electronic Transaction Ordinance, 2002.
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Interestingly this makes the video recording more sacred than 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 at Article 164 of Qanoon-e-Shahadat Order, 1984.
According to Article 164, 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.
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International law on using video recording as evidence
As per Indian law, the Information Technology Act, 2000 specifically defines video recording as an electronic record under section 2(t). The term used in Indian law is an 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 the 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.
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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; is the information relevant; is it authentic; is it hearsay; is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and does its probative value survive the test of unfair prejudice?
As per UK law, the Association of Chief Police Officers (ACPO) uses 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 that 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.
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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.
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Importance of proving video evidence
The most basic and common form of defense to deny the admissibility of digital evidence is that it can be altered.
More recently in the case titled “Mian Khalid Pervaiz Versus The State through Special Prosecutor ANF and another” reported as 2021 SCMR 522 a Full Bench of the August Supreme Court of Pakistan was pleased to hold that, “Documentary evidence in defence recorded by means of automated information system was held to be admissible in evidence in terms of Article 164 of the Qanoon-e-Shahadat Order 1984 but in case of denial, the law required that such evidence generated through the automated system must be proved in accordance with law. It was further held that Courts had been empowered to receive and make use of such evidence collected through modern technologies.”
Likewise, in the case titled “Ali Haider alias Papu Versus Jameel Hussain and others” reported as PLD 2021 SC 362 a Full Bench of the Supreme Court of Pakistan, while interpreting the provisions of Article 164 of the Qanoon-e-Shahadat Order 1984 was pleased to hold that “For the law to serve people in today’s technologically complex society, courts needed to understand and be open to science and its principles, tools and techniques.”
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“Legal decisions of the courts must fall within the boundaries of scientifically sound knowledge. A judge and more so a trial judge, acted as a gatekeeper of the scientific evidence and must, therefore, enjoy a good sense and understanding of science. As science grows so will the forensic techniques, tools and devices; therefore, courts must be open to developments in forensic science and embrace new techniques and devices to resolve a dispute, provided the said technique and device was well established and widely accepted in the scientific community as a credible and reliable technique or device.”
“Article 164 of the Qanoon-e-Shahadat, 1984 was the gateway allowing modern forensic science to come into courtrooms. Article 164 provided that courts may allow to be produced any evidence that may have become available because of modern devices and techniques. Proviso to Article 164, provided that conviction on the basis of modern devices and techniques may be lawful. Article 164 read with Article 59, inter alia, allowed modern forensic science to enter courts through the credible and valued scientific opinions of experts as evidence, in order to arrive at the truth.”
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Common defense against using video recording as evidence
In the case titled as “Ishtiaq Ahmed Mirza and 2 others Versus. Federation of Pakistan and others” reported as PLD 2019 SC 675 it was rightly held by a Full Bench of the August Supreme Court of Pakistan that “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 the case titled as “Ali Raza alias Peter and others Versus The State and others” reported as 2019 SCMR 1982 a Full Bench of the Supreme Court of Pakistan while dilating upon the provisions of Article 164 of the Qanoon-e-Shahadat Order 1984 was pleased to hold that “Court invested with wide powers under Art. 164, Qanoon-e-Shahadat Order, 1984, to make use of evidence generated by modern devices and techniques.”
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In the case titled “Asfandyar and another Versus Kamran and another” reported as 2016 SCMR 2084, a Two Member Bench of the Supreme Court of Pakistan were pleased to hold that “Mere producing of CCTV footage as a piece of evidence in court was not sufficient to rely upon the same unless and until it was proved to be genuine—In order to prove the genuineness of such footage, it was incumbent upon the defense or prosecution to examine the person who prepared such footage from the CCTV system.
Under Article 164, Qanoon-e-Shahadat Order, 1984 trial court may allow the production of Closed-Circuit Television (CCTV) footage but it was incumbent upon the defense to prove the same in accordance with the provisions of the Qanoon-e-Shahadat Order, 1984.
The defense had to produce, the concerned person who had prepared the footage from the C.C.T.V. system in order to prove the same. The adverse party was to be given an opportunity to cross-examine the said witness regarding the genuineness or otherwise of the said footage.
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Mere production of CCTV footage as a piece of evidence in court was not sufficient to rely upon the same unless and until it was proved to be genuine. In order to prove the genuineness of such footage, it was incumbent upon the defense or prosecution to examine the person who prepared such footage from the CCTV system.”
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” (the US v. Bonallo, 858 F. 2d 1427 – 1988 – Court of Appeals, 9th).
The challenge
A person is seen in the video with the following details; stealing a vehicle from outside the house of the owner; owner name and house address confirmed; daylight occurrence; the face of the accused/culprit recognizable; recorded from a home CCTV on the memory card, and 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 in every tier of the criminal justice system, challenges are:
Investigation and collection of evidence: Procedure adopted for the collection of the data of the memory card.
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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 the presentation will definitely affect the level of appreciation of the evidence.
Appreciation of such recorded Video: This is the place where discretion comes into play. Only the quality of the presentation of evidence can affect the appreciation level. There is no yardstick to measure the discretion but there are certain measures that can improve the appreciation of such recorded evidence.
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Solution to the challenge
The defense is always looking for loopholes to tear the well-knitted net of prosecution’s evidence. A small hole in the net can become a reason for the acquittal of the culprit. In the given scenario of using video recording as evidence, 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 screenshot of the CCTV in which the accused can be easily seen and identified. And on the basis of that screenshot, 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 connecting the accused with the occurrence.
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There might be many ways to do the same thing but the only thing that matters is that no bogus witnesses should be placed as witnesses in the memos. The reason is that the memos 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 memos are somehow the piece of thread through which the CCTV footage is knitted in the web of the 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 take 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.
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Should video recording be used as evidence?
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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The use of modern devices, modern technology for video recording is regarded as a valid piece of evidence and the same can be termed as admissible in law. The same has been approved and acknowledged around the globe. This is a unique step towards the recording of evidence the first of its kind and can be termed as a step in the right direction!
The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005. Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.