The European legal framework on electronic evidence : complex and in need of reform

Abstract

More and more, “electronic evidence”, defined as “any of potential probative value that is manipulated, generated through, stored on or communicated by any electronic device”, plays an important role in criminal trials. This is not surprising given that most of the activities we take part in daily are captured in an electronic way, for example, our electricity consumption is registered electronically by smart meters, our smart mobile phones store information on our calls, messaging, Internet behavior, lifestyle choices, etc., all of which may have some potential probative value in a criminal trial. Apart from, or because of, its particular nature, electronic evidence is not necessarily linked to the same territorial jurisdiction as where an alleged crime would have taken place or is being investigated. This paper focuses on three aspects of this cross-border nature: (a) where it may be due to the information provider “recording” the information; (b) where the actual digital information is stored; (c) where the crime itself has a cross-border nature. This paper reflects on these three effects of this “cross-border” nature of electronic evidence when regulating electronic evidence in the criminal law process. This paper shows how current national and international legal frameworks are insufficient to meet with the current needs. Further it is argued that solving the current shortcomings is not merely a matter of introducing new agreements but is more complex, needing new theoretical frameworks and the collaboration of a large variety of actors.