POLICE have called for the abolition of a key plank of Scots law in order to help secure convictions for online crimes such as child pornography and grooming.
Officers say the need to corroborate key facts to bring a case to court is limiting their ability to tackle cyber crimes, which include paedophilia, harassment and online fraud.
But online experts have warned that digital trails of evidence can be unreliable on their own and need to be corroborated by others forms of evidence to prevent miscarriages of justice.
Police Scotland officers struggle to find corroborating evidence when acting on allegations of online crime brought by members of the public.
Assistant Chief Constable Malcolm Graham said: “It’s an emerging crime type where the likelihood of getting corroboration for essential facts diminishes.
“A lot of cases that come through the courts are where police have proactively monitored people, where we think there’s a risk that children might be abused.
“But in cases where people come and report to us that they have been the victim of cyber crime, there can be issues in terms of attributed communications hardware.
“We believe the law should develop to keep in touch with technology. This would be an example where current legislation has not developed and evolved in recognition of the range of criminal operations.”
Police Scotland supports the Scottish Government’s plans to abolish the requirement to have corroboration in order to bring a case to court.
The legislation, which is being debated in the Scottish Parliament, is based on recommendations by Lord Carloway, the Lord Justice Clerk, which are opposed by other Scottish judges and leading lawyers.
Professor Bill Buchanan, director of Edinburgh Napier University’s centre for distributed computing, networks, and security, which trains police in tackling cyber crime, also warned against abolishing the need for corroboration.
“On the internet it’s very difficult to take one source of evidence as a definitive source as things can be changed and people can have different identities,” he said.
“We should always get some physical and some traditional corroboration, along with the digital footprint.
“Logs can be tampered with, you have an IP address, but people can spoof them.”
A UK expert on online crime said that more funding, rather than a change in the law, was needed.
David Cook, a cyber crime and data security solicitor, said: “Our prosecutors find it notoriously difficult to adequately evidence crimes that occur online and the vast majority go not only without prosecution but even without a proper investigation.
“However an effective investigation can and should still take place. That those who police us choose to not provide adequate resources to such matters, instead suggesting the erosion of a civil liberty that is centuries old, is a lamentable position.
“I fear that such a change would inevitably cause an increase in the number of miscarriages of justice,” he added.
Police Scotland estimates that 3,000 more victims will be granted access to justice by abolishing the need for corroboration,” he added.
In a separate study, the Crown Office looked at 458 rape allegations which did not reach court because of insufficient evidence. They were re-examined as if corroboration was not required and prosecutors estimated 82 per cent could have proceeded to trial, and 60 per cent had a reasonable prospect of conviction.
Police Scotland has not yet produced similar research on what impact removing the requirement would have on cyber crime.
Alison McInnes MSP, Scottish Liberal Democrat justice spokeswoman, said: “This is a new argument which has certainly not been reflected in the wide range of evidence given to the justice committee. If Police Scotland believe that corroboration has impeded cases such as these then I am surprised that they have not reflected that in their oral evidence to the committee.
Abolition call: Cadder ruling
The proposed abolition of corroboration – the requirement to have two independent pieces of evidence to bring a case to court – stems from a Supreme Court judgment in 2010.
The UK’s highest criminal court found in favour of Peter Cadder by ruling that it was a human rights breach for police to interview suspects without giving them access to a solicitor. This has led to more suspects refusing to speak in interviews.
This is particularly problematic for police in cases of alleged rape. Previously an accused may have admitted having sex but claimed it was consensual, which would have allowed police to corroborate a key element of the charge.
In light of the Cadder ruling, the Scottish Government asked Lord Carloway, now Scotland’s most senior judge, to review Scots law. Carloway made a raft of recommendations, including abolishing the need for corroboration. The proposal is in a criminal justice bill now in front of the Scottish Parliament.