Trial by iPhone - Why digital evidence can be a hindrance in a divorce

Nick Gova, managing associate, Cripps, 07/09/2022

During the trial between Johnny Depp and Amber Heard, bundles of smart phone evidence – including photos, recordings and messages - were produced by both sides to bolster their cases. But ‘trial by iPhone’ is not merely confined to US libel cases. The digital revolution is increasingly playing a part in English and Welsh family proceedings, too.

Many family cases now involve reams of evidence taken from digital platforms such as WhatsApp messages, videos, audio recordings and social media platforms. Given the relative ease with which personal accounts can be found, it is no surprise that these platforms are being used.

While such evidence can be helpful, there is a risk that the information provided can be overwhelming. Family courts are under immense pressure to deal with matters efficiently and effectively. They simply do not have time to trawl through numerous documents. Careful curation is essential.

How digital evidence is useful 

So, when is digital evidence useful in family proceedings? Within the context of financial remedy proceedings, social media posts detailing or discussing lavish spending and lifestyle can be used to demonstrate family spending and standard of living. This can be influential in a court determining the level of maintenance that should be paid. Posts on LinkedIn can be useful in showing an individual’s career trajectory and earning potential.

Recently, we acted for a wife whose husband owned various companies but suggested they were all loss making. However, LinkedIn showed the company expanding and advertising to recruit. These posts were produced by way of screenshots and the Judge was compelled to assign a value. 

Likewise, in child arrangement proceedings, posts of extensive partying or substance abuse could be taken into consideration. Text messages also frequently play a role in establishing or challenging a party’s credibility. The issue, however, is that context is rarely provided, often leading to lawyers producing supplemental bundles.

Nonetheless, a digital footprint can be helpful to identify issues such as coercive control or abuse, particularly when building a case. For example, where a partner has been aggressive or derogatory in communication, it can show the nature of the relationship and relevant behaviours. This can be useful to a court when deciding arrangements.

Not all electronic evidence, however, will be relevant. When no-fault divorce came into place in April 2022, it removed the need to evidence the other party’s blameworthiness. Likewise, smartphone evidence regarding the breakdown of a relationship will rarely have an impact on financial proceedings or children act proceedings.

A word of caution

As Depp v Heard demonstrated, video and audio recordings can be useful contemporaneous evidence but caution is required.  Recently we acted for a mother whose ex-partner (the father) was attempting to prevent her seeing the children. He produced 20 covert voice recordings in which he interrogated the children, leading them to make allegations against the mother. Ultimately, such recordings cut both ways. The father had hoped that the recordings would support his case. However, his questioning of the children, his clear motivation in case building against the mother and the harm such recordings would cause to the children, were considered.

There are also privacy considerations at play. In Imerman the wife’s brother had accessed the husband’s computer and downloaded between 250,000 and 2.5 million pages worth of documentation. Some of this documentation was handed to the wife’s solicitors, who disclosed it to the husband’s solicitors. However, most of the information obtained was then not disclosed by the husband within the course of financial disclosure.

It was held that a person enjoys legal protection of their confidential and private information and documents. It is a breach of confidence for a person, without proper authority, to examine, or to make, retain or supply copies to a third party of a document whose contents are confidential. The confidence in question arises from the nature of the material rather than how it is kept. That said, the spouse, having returned the documents to the other spouse, could still rely on their memory of the contents and would be permitted to use that recollection.  

Whether the focus is on divorce and the associated financial remedy proceedings or child arrangements, digital evidence is becoming the new norm. However, parties must carefully consider what evidence is most valuable.  

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