A review of electronic evidence and electronic crime

Abstract

We now live in what has been termed as the electronic age, the result of proliferation and integration of computer and communication technologies into every aspect of everyday life. It is very difficult to conceive interaction with any government institution, business or industry other than through the generation of electronic communication and electronic interaction. Mankind, inventive in nature, has through the ages devised means of communication which have contributed towards globalization, through the propagation of new information technologies such as the Internet and Social Networking. By effecting shifts in the human experience of space and territory through which national boundaries have been eroded into a virtual domain, the mode of communication has become dominant with an irreplaceable economic value. This electronic age has over the past decades compelled legal reforms, revision and the update of rules of evidence, proof and admissibility. Law Courts are witnessing a myriad of electronic evidence in the form of emails, mobile messages, chat records, blogs, tweets and all the niceties of modern parlance which in essence are nothing more than components of electronic / digital data. This thesis aims to address the various facets of electronic crime and the nature of electronic evidence in relation to its specific charter and nature. Electronic evidence and electronic crime are analysed in relation to admissibility, chain of custody, expert witness and probative value. Where opportune, various international instruments on the subject, legislation and case law in other jurisdictions, are also looked into. The thesis explores electronic evidence and electronic crime as actions which should be considered as legal or illegal according to their merits and not according to the medium used. Legislation should aim to criminalise the offence regardless of the means used to commit the offence. Current legislation has been in force for the past decade and various cases have been prosecuted under the provisions of Computer Misuse under the Criminal Code Chapter 9 of the Laws of Malta. The Legislator should consider if provisions of traditional crime committed or facilitated by the use of electronic devices, should be considered as aggravated by technology. If so, provisions on concurrent and continuous offences might also need to be reviewed.