The right to a fair trial as a conceptual framework for digital evidence rules in criminal investigations

Abstract

Digital evidence and digital forensics have a significant impact on criminal investigation. This requires an examination if the fair trial principle remains sound in the new domain. In this paper the right to a fair trial in Art. 6 ECHR and its interpretation in case law is analysed in order to clarify its connection to evidence law and its specific application to the investigation stage of criminal proceedings. It is argued that the principle implicitly enshrines a framework for the development of universal evidence rules . Derived are two-groups of evidence rules: equality of arms based and presumption of innocence based. For each group specific challenges in the digital investigation are outlined and discussed in the context of a new governance model for digital evidence.