Science and technology as well as law are vibrant and changing with the moving civilization. In administration of both civil and criminal justice, evidence is usually part of any legal system. In Bangladesh, criminal investigation is mainly governed by three legislation — the Code of Criminal Procedure 1898, the Evidence Act 1872 and the Police Regulations of Bengal 1943. These three instruments, however, do not provide any direct provisions of the collection and management of digital evidence. Digital evidence has faced numerous generations throughout the ongoing evolution of the legal arena along with the fast-paced evolution of human society and technology.
Definition from legislation:
(i) “digital” means a working method based on double-digit (0 and 1/binary) or digit, and, for carrying out the purposes of this Act, also includes electrical, digital, magnetic, optional, biometric, electrochemical, electromechanical, wireless or electro-magnetic technology;
(j) “digital device” means any electronic, digital, magnetic, optical, or information processing device or system which performs logical, mathematical and memory functions by using electronic, digital, magnetic or optical impulse, and is connected with any digital or computer device system or computer network, and also includes all kinds of input, output, processing, accumulation, digital device software or communication facilities.
Digital devices are the only, and peremptory source of digital evidence.
What is Digital Evidence?
“Digital evidence is information and data of value to an investigation that is stored or received, or transmitted by an electronic device.” Digital evidence not only includes the physical item of data or technology but also includes any interior or external state of technology or data. For example, computer doesn’t only mean the sole monitor or CPU, it also includes mouse, cable, software etc.
The Evidence Act does not include specific information on encompasses electronic pieces of evidence or how to use this evidence in various suits, creating uncertainty among the lawyers and the judges about using and interpreting them under the scope of the Act. Evidence according to Section 3 of Evidence Act 1872 comprises “oral evidence by witness upon inquiry before the court and documentary evidence produced before the court for inspection”. The only reference on the digital investigation is Section 45 of the Evidence Act, 1872- “If the court put forward the necessity to form an opinion as to determine the fact of science or art or handwriting identification or finger impression, etc, then the court may summon the assistance of specially skilled person/s in that particular field”.
Development by cases:
In the case of Khaleda Akhter vs State, the point for consideration was whether a video cassette is a ‘document’ within the meaning of the Evidence Act. The author judge of the very case, namely A.T.M. Afzal J stated –
“A video cassette is a document within the meaning of the Evidence Act and is accordingly admissible in course of a trial or proceeding”
He further explained –
“The word ‘matter’ occurring in the definition of ‘document’ is a term of widest amplitude. The ordinary meaning of the word matter Is anything that which has mass and occupies space, that is to say, physical substance in general, as opposed to spirit, mind etc. if for the purpose of showing it on television on application of technology a video cassette or tape is made, we don’t see any reason why the same should not or could not come within the definition of ‘document.”
Before the judgment of Khaleda Akhter case, digital evidence (i.e., Video cassettes) were not recognized as evidence. But after this landmark judgment, a new principle in terms of digital evidence has been introduced. Being the judgment of the apex Court of the country, it will have binding force and the upcoming cases have to follow the principle of ‘stare decisis’.
In several cases, the Court has taken digital evidence into account. For example, in Rajon Murder Case, Biswajit Murder case, Nusrat Murder case, the Court has acknowledged the relevancy and admissibility of digital evidence. There are many cases right now to be decided where digital evidence can play a key role to ensure justice. For example, Abrar Murder case, Rifat Murder Case etc.
Digital Evidence in Bangladesh under the Evidence Act 1872
‘Evidence’ generally means any information, data, or document which can be produced before the Court in a trial to prove or disprove a particular contention.
Digital records are not recognized as evidence under the Evidence Act. The Evidence Act was enacted in 1872 and was imported into our land through the laws Continuance Enforcement Order, 1971. Since then, it has been operating as the principal law regulating evidence in different cases. According to the provision of the Act, “Evidence” means and includes-
(a) All statements which the Court permits or requires to be made before it by witnesses or oral evidence
(b) All documents produced for the inspection of the Court or documentary evidence
Evidence is either oral evidence or documentary evidence. But the term does not explicitly include any electronic/digital data or record as evidence.
There have been allegations that the main reason why digital evidence has not been included under the Act is that this kind of evidence is easily alterable. They are often not authentic and it is extremely hard for a developing country like Bangladesh to prove their authenticity beyond a reasonable doubt. Another contention is our Police force is not qualified and well-prepared to collect, record, produce and support this evidence properly. So, their admissibility is not encouraged under this Act.
However, these are nothing but mere excuses and fallacies. Under several legislation of the same country, digital records are admissible as evidence and are being produced in trials at a large scale. The same Police are collecting, preserving and producing the evidence based on which suits are being disposed of. So, these excuses do not stand a chance on ill-equipment ground. Moreover, the Evidence Act has made expert opinion admissible under Section 45. So, corroborating and proving the merit of digital evidence beyond reasonable ground is not a challenge under this Act.
The main reason for this exclusion is the lack of intention of our legislatures. When the Act was drafted and came into force, there was no concept of digital documents in our sub-continent or other parts of the world. So naturally, the definition of documents would not include digital records at that time. But in this modern age, the admissibility of digital evidence is a crying need for insurance of justice and inclusion of such is a must. While we can include and produce digital evidence under other laws, there can be no satisfactory ground existing to support the continuity of such exclusion.
Importance for Incorporation of Digital Evidence:
The fundamental law of Evidence, the Evidence Act, 1872 is still backdated in coordination with the fast growth of science and technology. Legal professionals i.e., lawyers, judges, experts, etc. are basically reliable on Evidence Act, 1872 in respect of evidence to prove or disprove any case. The absence of the admissibility of digital evidence often creates confusion among judges, lawyers, investigative agencies and parties. Tech-based crimes or crimes using e-devices or modern technologies are frequently increasing day by day. Cybercrime, hacking, online bullying, online harassment, stealing data, violation of others’ personal information, online threats, etc. are very common crimes nowadays. Bangladesh has over 79.227 million internet users. It has created a high risk of online crimes using technologies. Many of this increasing number of Internet users are involved in various offenses via social media, email, portal, blog, etc. In the disposition of these crimes, lawyers, parties, law enforcement agencies may require placing many important digital pieces of evidence before Courts. But now there is no such scope under the Act. Now a question may come off the necessity of incorporating digital evidence into the Act when other laws are providing few remedies but not fully. As both civil and criminal proceedings are directly related to the Evidence Act, 1872 question of admissibility or relevancy comes here through the ICT Act, 2006, Pornography Control Act 2012, etc. though admitted all forms of electronic or digital evidences but they are special laws, not general laws for the respective offenses.
How Digital Evidences Are Currently Admitted
Though the main Act on evidence, the Evidence Act 1872 doesn’t contain specific and clear provisions regarding digital evidence, there are some legislations to address digital evidence such as Section 16 of the Speedy Trial Tribunal Act 2002, which has admitted any sort of photographs, recordings as evidence during the trial. Under Section-14 of Ain Sringkhola Bighnokari Aporadh Ain 2002, photograph and in doer is admissible. Pornography Control Act 2012 also admitted all forms of electronic devices in Section 6 of this act. ICT Act 2006 has also included all digital or electronic evidence.
Challenges of digital evidence:
Collecting digital evidence requires a skill set not always needed for physical evidence. There are many methods for extracting digital evidence from different devices and these methods, as well as the devices on which evidence is stored, change rapidly. Investigators need to either develop specific technical expertise or rely on experts to do the extraction for them.
Preserving digital evidence is also challenging because, unlike physical evidence, it can be altered or deleted remotely. Investigators need to be able to authenticate the evidence, and also provide documentation to prove its integrity.
Problems with Existing Laws:
The abovementioned laws are enacted as special laws to rectify any specific crime. But at large most of the civil and criminal suits can be categorized as general not special which are dealt with with the help of the evidence Act 1872. So, it creates an irregularity in the whole legal system. Moreso, the language of those laws is not enough or open to get legal coverage on any digital technologies which are being discovered every day.
Challenges in Introducing Digital Evidence- There are some structural challenges facing the courts in introducing Digital Evidence in our court system:
1. Firstly, our courtrooms are not well-equipped to support digital evidence. So, the incorporation of digital evidence requires the arrangement of courtrooms first.
2. Secondly, our judges, lawyers, and court staff are not experienced or acquainted with such matters. It will be a challenge to train them.
3. Thirdly, common people may face hurdles with such change especially the people who are ignorant of technology.
4. Fourthly, Digital evidence can be easily modified, altered or transmitted. It may create a scope of altering important evidence unless precautionary measures are taken.
5. Fifthly, Quality IT experts may be required to deal with modern technologies.
It is high time Bangladesh took initiatives for amending the hundred years old Evidence Act, 1872. This age of science and technology has influenced our legal system obviously. New forms of crimes are committed by offenders. As a growing legal system, if Bangladesh lags behind regarding the rule of evidence which is a very absolute part of the administration of justice, the whole system will suffer due to failure to ensure proper justice to people.
Next, we will discuss forensics of digital evidence and hashing technology.
Authors of this write: