The growing role of social media platforms in our lives has led to ever more pressing questions about the role of digital evidence in legal proceedings. The explosive growth of certain social media sites and platforms in the wake of the COVID-19 pandemic meant that more people were sharing more of their lives through their social media accounts. Social media acted as a way to virtually bridge the gap left by the absence of normal social contact.

But does it belong in our courtrooms?

There are instances of the police using social media posts as evidence of inciting violence and looting, to bring those responsible to justice (the Salford and London riots of 2011). But how far should this go? Social media evidence was also used to settle legal matters in the recent cases of R v Phillips [2020] and R v Crampton [2020], which established precedents for the use of social media content to identify alleged offenders.

Still, legal professionals are left with important questions about the role of social media evidence for this purpose. Should it extend to witnesses or victims of a crime being able to identify their assailants by using social media? How reliable is this identification? How can we account for the risk of third parties directing the witness and inadvertently creating a false identification or memory of the person accused of the crime?

Both of the above cases grappled with important questions about the viability of using social media posts as evidence, and ultimately paved the way for social media identification to be successfully used in criminal trials. However, it remains to be seen whether concerns about social media identification can be fully addressed.

How Is Formal Identification Made Under the Police & Criminal Evidence Act 1984 Codes of Practice (PACE)?

Formal identification of suspects is typically carried out in a controlled environment, which seeks to reduce the possibility of any misidentification of a suspect by a witness. Misidentification can occur when investigators either draw the witness’ attention to the suspect, or make the suspect's identity known before the procedure (paragraph 3F, Code D of PACE).

Identification of a suspect by a witness via social media is therefore not a formal procedure undertaken in a controlled environment, and it follows that this process is understandably open to criticism on reliability. Certainly, it is difficult to establish whether there was a misidentification when the suspect was initially identified informally on a social media platform, compared with a more formal and impartial process. However, the courts have concluded that where the jury can be directed towards the obvious pitfalls of such an identification, the evidence itself should not be automatically excluded from trial.

R v Phillips [2020] EWCA CRIM126

In Phillips, the issue concerned witnesses being directed to the defendant via a social media image. Here, three eyewitnesses to a stabbing were all shown a photograph of the defendant by a third party, before any formal ID procedure took place. The judge specifically addressed this point by seeking to distinguish any confusion over the potential link between a social media photograph of the defendant and an identification of the defendant as the person involved from a real memory of the crime. The judge directed each witness to confirm whether the person that they identified in the formal ID procedure was the person they actually witnessed at the stabbing, or simply the person whose social media image they had been shown after the event. All of the witnesses gave evidence that the defendant was the person they saw during the stabbing.

R v Crampton [2020] EWCA CRIM 1334

In Crampton, the issue concerned an indecent assault, and an identification of the defendant via Facebook where no formal ID procedure took place. The complainant knew the defendant’s first name, and was given his last name by a third party. She then found the defendant's social media account on Facebook, and recognised him as the offender. The complainant’s mother confirmed that she had always known the defendant’s name, and also recognised the Facebook image of him shown to her by the complainant.

There were also other witnesses, including the complainant’s father (who identified the defendant via VIPER) and a close friend of the family who witnessed the defendant being thrown out of the house at the time. The judge considered the evidence at length and in detail, and identified to the jury the risks with any Facebook identification. He concluded that, nevertheless, identification through Facebook posts or profile images was admissible as evidence, and the question for the jury was to consider the weight of that evidence in the context of the other ID evidence in the case. On appeal by the defendant, the court held that the trial judge had not erred in his decision and that the jury were properly directed so as to be able to reach a fair view.

Practical Considerations

The judgement in Phillips sets out some important practical considerations when dealing with social media identification and its use in criminal trials:

1. Particular importance should be placed on the police obtaining as much evidence as possible regarding any social media identification;
2. Social media identifications are admissible, but the jury should have as much evidence in relation to them as possible;
3. Careful directions need to be given to the jury about specific weaknesses caused by social media identifications which are made prior to a formal ID parade; and
4. Separate directions are required where a social media identification may have been influenced by comments made by a third party.

It is therefore clear from the case law that the use of social media to identify defendants is admissible as evidence in criminal trials, so long as the jury is given appropriate directions by the trial judge as to the dangers of such evidence and the weight to be attached to it. This is clearly unsavoury for the defence who, in such circumstances, must rely heavily on the judge to give appropriate directions to the jury so as to not unduly prejudice them against the defendant.

What Other Types of Social Media Evidence Can Be Used?

The use of social media evidence, ranging from private messages and other forms of digital communications to public posts, has become more widespread as social networking has taken on a bigger role in public life. Depending on the nature of the case, any social media posts or private messages that constitute relevant evidence may be submitted in court. Digital evidence has been used in everything from personal injury cases to employment and family disputes.

In England and Wales, digital evidence is not excluded or affected by the nature of the platform, which means that all types of content, from a Facebook post or a tweet, to an Instagram message or even a WhatsApp screenshot, could be admissible. The court must be satisfied that the content is genuine, the evidence is relevant, and the value of the evidence outweighs any prejudicial impact. Even deleted posts may be used if screenshots are available and can be authenticated through digital forensics.

This evidence may be most common for those facing charges under the Malicious Communications Act 1988, the Communications Act 2003, or the Online Safety Act 2023. However, there are several different ways that social media content may prove to be valuable evidence outside of these directly relevant contexts. For example, content may be used to:

• Demonstrate a party’s state of mind or intentions - for example, threats and other such conduct
• Present evidence of admissions of guilt.
• Show the nature of personal relationships between the parties involved.
• Contradict witness evidence.
• Evidence presence or absence at a location.

If social media posts or related digital evidence are to be used in legal proceedings, the burden is on the party relying on the social media evidence to prove it is authentic. In some cases, it is sufficient to show that the content was posted from an account controlled by the person alleged to have posted it. In other cases, establishing digital footprints through metadata or presenting statements from independent experts may be required.

As with the use of social media identification, courts are careful to provide additional contexts for social media posts or content used in evidence. Supporting evidence is vital in cases where a party is relying on screenshots of social media activity as evidence, as there may be more difficulty in conducting the necessary digital forensics to establish their authenticity.

At JMW, our criminal defence experts work to build the strongest possible case and will advise clients of whether social media content could be valuable evidence. If so, we will take the necessary steps to prove the authenticity of the content, preserve evidence through screenshots and prepare your case in compliance with data protection laws.