I attended this very popular event organised by the London Family Justice Board at the Law Society this week. The large Common Room was packed. Unfortunately due to train issues I missed the very beginning and had to rush off before the end of questions but nonetheless am able now to report back on most of what took place.
The event was aimed at legal and other professionals rather than litigants themselves, but we thought it might be useful to attend and report back.
The event was chaired by His Honour Judge Tolson QC (Designated Family Judge for Central London), and speakers included two judges, an IT expert and a Detective Chief Inspector from the Met Police.
Christopher Hatfield, IT expert gave an interesting presentation about the ease with which social media evidence can be manipulated or faked (I missed the beginning of his talk). There was a surprising amount of incredulity apparent at how easy it was to cut and paste parts of a screenshot of one Facebook page and merge them with another to create something quite misleading (lawyers eh?). The emphasis here was on needing to see the digital record of a piece of evidence as opposed to a printout of an image that might have been manipulated, and of seeing it on the device itself and ensuring there was a chain of evidence (for example a witness statement from an independent person saying I saw / removed x y z from this device and preserved the digital records and signatures). And upon thinking about the source of the evidence (produced by party who wishes to rely on it or independently verified?), and what clues are in the evidence to enable corroboration enquiries to be made (login details, dates, usernames of others commenting).
Also flagged (and probably only news to technophobe lawyers of a certain generation) was the fact that conversations in apps like Whatsapp can be selectively edited (same goes for text message threads on iPhone) so one needs to cross reference a conversation on both devices to ensure that this has not happened. And of course, Snapchat simply disappears in a puff of smoke so cannot be retrieved (unless a screenshot is taken at the time).
What wasn’t discussed (unless it was covered in questions after I left) was how in practice in family proceedings, with all the restrictions on legal aid and limited support from lawyers or any other agency, one could get this sort of device checking, chain of evidence, forensic stuff done.
Personally, I have certainly started asking for full sets of message exchanges from both parties. I have also started asking solicitors to verify having seen records on a device, verified the digital time stamp and have extracted them personally by witness statement – rather than getting a client to produce a print out and annex to their own statement. But this is not always possible, and does not entirely remove all the evidential gaps.
Also discussed was cell site analysis (data which shows through triangulation of masts where a mobile phone has been and which can therefore help pinpoint someone’s movements) and other phone record data (who called who and when, but not the content of the call) – which it is possible to secure disclosure orders for in family proceedings, for example where there are suspicions of parents resuming a relationship – but again, there are issues in terms of the costs of these and the proper phrasing and direction of orders, which it might have been helpful to run through.
DCI Alisa Newman talked about the many and growing challenges of policing in the social media area. In particular, she emphasised that as the quantity of data had massively increased, the difficulties in accessing it had also increased – so, for example, Facebook users more often lock down their privacy settings than in the past, meaning that RIPA (Regulation of Investigatory Powers) authorisation needs to be sought. She talked about the use of social media in connection to gang related crime, where gang members might momentarily lift their privacy settings to publish a bragging or confrontational message to rival gangs, or might publish a video on youtube which would gain significant views in a short period of time.
His Honour Judge Madge gave an interesting talk on some issues around social media in the criminal context – the thrust of his talk was that social media evidence is often used and can be quite important – cell site analysis was an example of something that was now quite commonplace.
The most interesting part of the session for me though was the really interesting summary of the law in relation to surveillance by District Judge Gibson, who had a background in a local authority before becoming a judge.
I won’t pretend to give a full (or accurate) rehearsal of the law here as I am working from my notes and have not had time to cross reference or properly learn the law myself for this post, but DJ Gibson summarised some of the key parts of RIPA as might be relevant in child protection work. Firstly, that the provisions of RIPA are a “shield not a sword”, that is to say they protect a local authority from claims in respect of surveillance if RIPA is followed. She summarised the legal difference in RIPA between overt, covert and intrusive surveillance – so, for example, a visit by a social worker and a knock on the door = overt, an unannounced visit by a social worker who peers through the window = probably covert and intrusive because the manner of it is calculated to ensure the subject is unaware of the surveillance.
DJ Gibson summarised the changes to the law brought in by the Protection of Freedoms Act 2012, which have caused practical difficulties. They mean that in cases of directed or covert surveillance, authorisation from a JP is required AND this will only be possible where the “crime threshold” is crossed, that is to say the surveillance is to detect a crime which carries a maximum sentence of 6 months or more. This means that in cases where a local authority wants to carry out surveillance of parents to see if they really have separated there are real problems.
These provisions also mean that there is a need to seek authorisation where using a fake ID to access private social media information, for example by friending someone whose privacy settings are high, or by logging in using someone else’s profile. Even where a local authority is accessing publicly open information, the suggestion from the Chief Surveillance Officer is that where this is repeated an authorisation should be sought. Except in suspected grooming or radicalisation cases it is unlikely that these sorts of activity would cross the crime threshold in child protection cases. So, all of this suggests that the accessing of parents’ facebook profiles by social workers in highly problematic and may not even be lawful.
Interestingly, CAFCASS do not count as a public authority for the purposes of RIPA, so they cannot even use it to obtain the protection of an authorisation.
I can certainly think of cases where social workers have carried out facebook or other surveillance of my clients (facebook or the peering through the window when they know they are out sort) – and I am pretty sure that no RIPA authorisation was sought. What the session didn’t cover is the consequences of such action without RIPA authorisation, if the surveillance is justifiable from a child protection point of view – it is possible that such action will amount to an actionable breach of article 8 if it is not necessary or proportionate, but as RIPA is a shield not a sword I’m not sure that it is unlawful per se.
This was an interesting session, and although it did not provide as many practical tips for use specifically in family proceedings as I had hoped, it has certainly piqued my interest and left me wanting to do more research into RIPA and its relevance for child protection practice.
I had attended on behalf of The Transparency Project, because we knew when we published the guidance in respect of parents recording social workers that individuals were far less restricted than the state in terms of gathering and recording the actions of others, but the RIPA regime appears to impact significantly on lots of things that social workers might legitimately want to do to protect children and find out what is really happening, and seems to be really quite difficult to work with. I suspect it is as poorly understood by many social workers as it was (and is) by me.
It might be that parents (and social workers) would be assisted by knowing what social workers are and are not allowed to do when acting to protect children through another guidance note (which would require a considerable amount of reading up on my part!).