Criminal law has always had to play ‘catch up’ to technological change, from the emergence of forensic DNA analysis in the late 1980s to the widespread adoption of the internet in the 1990s.
In recent years, the pace of technological change has accelerated and so has the nature of criminal investigations and prosecutions.
The following examines how technology is changing the way criminal cases are prosecuted, the legal foundations that govern these developments and the emerging challenges facing courts.
Increased Use of Digital Surveillance
Our high-tech world is now increasingly one of mass surveillance, which police and prosecutors are keen to take advantage of.
Closed-circuit television (‘CCTV’) is now ubiquitous across public spaces, including on public transport, in shopping centres and in service stations. It’s also increasingly used at residential properties as a means of private security. CCTV footage, in turn, frequently forms part of a prosecution brief whether as a means to identify suspects, corroborate narratives or establish timelines.
However, identification from CCTV remains vulnerable to error. Courts require careful scrutiny of digital images, particularly where resolution is low or faces are partially obscured.
Key parts of surveillance evidence may also be hiding in your pocket. The rise of smartphones means that a significant amount of data, including call logs, SMS and messaging records, as well as cell tower connection and GPS location data, is commonly extracted by forensic experts and entered into evidence.
Finally, investigations also increasingly involve monitoring online activity for evidence, including social media platforms, encrypted messaging applications and dark web activity. Police may engage in undercover online operations to obtain evidence from suspects, or they may gather a number of ‘open source’ data from social media to use against a defendant.
Electronic Case Management and Evidence Presentation
Digital disruption means that criminal cases are not always handled in paper form. Prosecution and police briefs are frequently provided in digital form, including a variety of digitised evidence, including forensic reports, video footage and digital extraction reports.
This has streamlined access to material but has also increased the volume of data. As a result of the growth of digital case files, criminal defence lawyers must now review extensive digital archives, sometimes comprising thousands of pages and hours of footage.
Modern courtrooms are also now equipped with the latest technology including screens, audio-visual systems and electronic tendering platforms. This tech means digital exhibits can now be displayed in real time, enhancing clarity for juries and increasing the persuasiveness of digital material.
The COVID-19 pandemic accelerated the adoption of remote court hearings, allowing accused persons and witnesses to appear via video link if the court permits, which has greatly improved court efficiency. However, remote hearings may affect assessments of credibility and the dynamics of cross-examination.
Data Analysis and Investigative Tools
Technology has also drastically reshaped how a criminal investigation is conducted.
Modern investigations involve analysis of large amounts of data including financial transactions, telecommunications metadata, internet browsing history and DNA databases.
Software is used to detect patterns, connections and anomalies that would be difficult to identify manually.
This use of algorithmic decision-making is increasingly used to identify suspects, predict crime hotspots and analyse communication patterns – a trend commonly referred to as ‘predictive policing’. The use of algorithmic tools raises questions about transparency and reliability, with concerns raised that such systems could exacerbate racial and other biases within the criminal justice system.
Finally, investigators often rely on visualised timelines and digital maps to illustrate movements derived from GPS data, CCTV timestamps and telecommunications records, creating reconstructions that can be compelling (but also sometimes misleading).
New Types of Criminal Allegations
Technology has not only changed investigative methods, but also the nature of crime itself.
A number of ‘cybercrime’ offences are now outlined under the Commonwealth Criminal Code (Cth) including offences relating to unauthorised access to data, impairment of electronic communications and computer-related fraud.
The rise of the internet has in-turn lead to the rise of new online offences including online forms of harassment, image-based abuse and cyberstalking.
Finally, technology has greatly increased the prevalence of certain offending, particularly the production, distribution and possession of child exploitation material which are criminalised under both Western Australian and Commonwealth law.
Legal and Ethical Considerations
Technological change in criminal cases also raises a number of ethical concerns.
Privacy groups have been quick to point out that digital investigations frequently involve intrusive searches of personal devices. Specialised warrants to access data, compel individuals to provide passwords and to conduct mass online surveillance have significantly altered our expectations of privacy. Where should the line be between personal privacy and valid criminal investigations?
These developments also raise concerns regarding due process and evidentiary fairness. Defendants may face difficulties challenging digital evidence where the underlying technology is complex, proprietary or poorly understood by courts and practitioners.
Finally, the increased use of automated tools, including algorithmic and predictive policing, has raised the risk of ‘algorithmic injustice’ and overreliance on systems that may be opaque, biased or prone to error and misinterpretation.
Innovation and Fairness in Balance
Technology has transformed criminal investigations and prosecutions in Western Australia and it’s crucial that defence lawyers act to ensure this change is done ethically and legally.
If you are facing a criminal matter in Western Australia, it is essential to seek guidance from an experienced Perth criminal lawyer who can provide expert advice, protect your rights, and help achieve the best possible outcome for your case.
