Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
U.K. COURTS RAP POLICE OVER CHILD PORN SEARCH WARRANTS
May 16, 2009
Another one of those "you can't make it up" stories from the sometimes bizarre world of computer forensics.
It is not exactly a secret that many in law enforcement are not thrilled with criminal defense attorneys or their experts. In the U.K., apparently, they took this distaste a step further and went after a computer forensics expert for possession of child pornography.
The expert, Jim Bates, has considerable expertise in computer forensics but tarnished his reputation when, in 2008, he was found guilty of perjury for misstating his academic qualifications. Nonetheless, in the instant case, the defendant wished to have his services because of his expertise.
So Mr. Bates and fellow forensics expert Chris Magee went to the local police station to make copies of the hard drives in question. Their objective was to see if malware might have caused the automatic download of the illegal images. (I have spoken to this defense before and will insert a loud sigh.)
Nonetheless, Mr. Bates actually signed an exhibit label while there. There was no attempt to conceal his identity. Over the next few months, there were heated exchanges between the police and Mr. Bates, after which the police conducted a simultaneous raid on the homes of both experts. The warrant said that the police were to look for evidence of "conspiracy to possess indecent images."
My favorite quote from The Register article, "Again, as we observed at the time, there was a whiff of "through the looking glass": impersonating forensic experts and signing in to a local police station using one’s real name in an attempt to access child porn is not the world’s most cunning of plans."
In any event, the police exceeded the warrant and left with large amounts of additional evidence and hard drives in their quest to provide the "conspiracy to possess," despite Mr. Bates' statements that there was privileged material being seized.
The police seemed to be acting under their own determination that Mr. Bates was no longer an expert due to his perjury conviction. The court, in its opinion, made it abundantly clear that the police could not make that determination – and that Mr. Bates' testimony would be admissible in court, with the fact of his conviction going only to the weight his evidence might be given.
The court found that the warrants themselves were issued unlawfully, because the police had no reasonable ground for assuming that there was no privileged or "special procedure" material on Bates' premises. Both the original search and its extension were declared unlawful.
Hat tip to Ian Henderson.
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