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Extract from the National Investigations Manual – by Nick Warburton
Prosecutions can be won or lost on the evidence at hand. For enforcement officers involved in putting together cases, gathering evidence that can stand up in court is an integral part of the process and can often rely on photographic evidence collected with digital cameras. Nevertheless, many enforcement officers worry that evidence of this sort could be thrown out of court – photographic evidence is open to manipulation and there is a danger that it may be dismissed as being an inaccurate copy of an “original”. What procedures should enforcement officers follow to ensure the evidence is admissible and are there any potential pitfalls they should avoid?
The Environment Agency, which brings hundreds of successful prosecutions every year, provides its enforcement officers with detailed advice on what procedures to follow for using digital cameras at incident scenes and what to do afterwards. While individual local authorities may adopt different procedures, the EA advice does offer a handy guide for EHPs involved in gathering photographic evidence.
To begin with, enforcement officers should be experienced and skilled in the equipment they are using. At the scene of an incident, they should take photographs at standard resolution and make a pocketbook entry detailing the photographs they have taken. Officers should avoid altering the resolution to take more photographs and swap memory cards instead to take additional shots. The problem with changing the resolution is that altering it may mean the images are not adequate for legal files. Officers should resist deleting photographs from the memory to create more space or to improve on a photo because the original photographs comprise unused material.
Back at the office, officers should immediately produce a master CD-ROM that contains all of the images on the memory card, no matter what incident they relate to by using a computer with a CD writer. It is very important that when officers transfer the images from the memory card to the computer they do not delay producing a disk. The computer system is not secure. Each image should be given a different reference on the disk. At this point, the officer should make a note relating to the preparation of the disk, which will later be used as part of an officers’ witness statement. This could say something along the lines of:
“…at 16.40 hours on Friday, 22 June 2005, I returned to the offices of X authority. At 16.50 the digital camera was connected to a PC. I transferred the 30 images stored on the memory card to the computer and immediately burnt the images to a CD-ROM, which I now produce as SLM1.”
After the disk has been produced, officers must check that all the images are stored on it. If they are, the disk should be retained because this is original evidence and must be produced as an exhibit. After the disk has been produced, the contents of the memory card can be stored on the computer. Once this has been done, the photographs on the memory card can also be erased so that it can be reused for another investigation.
When the officer comes to present the case in court, using photographs as exhibits, they should also provide a witness statement that contains information like:
“On Thursday, 25 July 2005 at 1100 hours, I had examined a CD-ROM (exhibit SLM1). From that disk of 30 images, I now produce 2 images. The first is a photo labelled PHOTO3.jpg that shows the food work surfaces at Richards Road (exhibit reference SLM2), the second labelled PHOTO4.jpg, which food storage areas at Richards Road (exhibit reference SLM3). I confirm that both of these photographs are accurate representations of what I saw that day.”
While this is being done, a pocketbook entry should be made of any actions the officer took. Should it be necessary to manipulate a photograph to draw attention to a particular point, this is admissible in court as long as the original photograph is also exhibited. It is vitally important, however, that the witness statement contains a paragraph explaining how the photograph has been manipulated. This could be something like:
“Closer examination of one of storage area in exhibit SLM3 shows that the food has been spoiled. I have prepared a close up photograph of this taken from exhibit SLM3 that I now produce as exhibit reference SLM4. This shows that there are mouse droppings in the food.”
Once all of these procedures have been carried out, the master copy should be retained and store in a secure place at all times because it may be required for subsequent court appearances. Master copies are subject to rules of evidence and any material retention periods. Master copies should be kept in sealed cases using appropriate security labels and stored in an environment that will not subject them to varying degrees of temperature of humidity. Labels should include the same information that is recorded on the surface of the CDR master copy. If there are no appropriate security labels, the master copies should be placed in sealed evidence bags, which clearly identify the contents of the CDR.