UNODC and South and South-East Asian countries consider evidence admissibility in terrorism cases

Evidence-based decisions are the cornerstone of a fair, just and effective legal system. Without them judgments are called into question, eroding justice and society’s perception of the law. But these decisions are only the end product; the final link in the evidentiary chain. Importantly, it is the evidence itself that must be shown to be admissible for these decisions to have stable foundations.

While the concept of admissible evidence is not new to national criminal justice officials, ensuring the same admissibility in evidence obtained from overseas jurisdictions presents a different set of issues. When this evidence is of an electronic nature, under the jurisdiction of another Member State or stored in the servers of a foreign service provider, requesting and obtaining evidence is even more complicated. No matter how well intentioned an official involved in a terrorism case may be, mistakes and exclusion of potentially key evidence have serious consequences.

Recognizing the need for national investigators, prosecutors, judges and central authorities to be supported in this regard, UNODC has worked to make sure they have knowledge and skills required to obtain consistent, “court-ready” electronic evidence in these serious cases. To this end, an online cross-regional meeting has been convened to strengthen these capacities for requesting and acquiring electronic evidence from foreign authorities and service providers, in compliance with the evidentiary standards of respective jurisdictions.

Organized in cooperation with the Secretariat of the South East Asia Justice Network (SEAJust), the event takes place under the project “Support to Sri Lanka on Counter-Terrorism” carried out with funding by the European Union, and a complementary project on managing evidence, particularly of an electronic nature, funded by the Government of Japan, on 20 and 21 January 2021. By utilizing the synergies of these related initiatives, nine countries across South and South-East Asia are due to participate in the event.

Through the analysis of recent trends, challenges and good practices in the field of admissibility of electronic evidence, consideration of questions on the competences of criminal justice practitioners to make direct requests to service providers and consultations on drafting and submitting of mutual legal assistance requests, the meeting will explore practical tips for presenting electronic evidence produced in another country at trial. Presentation of case studies from participants will also allow the meeting to shed light on key questions regarding admissibility requirements and case law practices from participating countries.

Recognizing that familiarity with the topic must extend beyond only those present, a new chapter considering issues of admissibility will be included in the updated Practical Guide for Requesting Electronic Evidence Across Borders, scheduled for release in 2021.

While the tactics of terrorist groups evolve, UNODC will continue to support Member States’ officials in securing the evidence needed to bring suspects to justice and ensuring its admissibility in the process.

This article was produced with the financial assistance of the European Union and the Government of Japan. The views expressed herein can in no way be taken to reflect the official opinion of the European Union or the Government of Japan.