Can the Police Use Social Media as Evidence?

Social media now plays an important role in many criminal investigations. Posts, photographs, videos, comments, private messages and location information can all potentially be examined by the police and relied upon as evidence.

The simple answer is that the police can use social media as evidence in England and Wales. However, the existence of a post or screenshot does not automatically prove that it is genuine, that it was created by the person accused or that it presents the complete picture.

What Social Media Evidence Can the Police Obtain?

Social media evidence can include material from platforms such as Facebook, Instagram, TikTok, Snapchat, X, YouTube and messaging applications such as WhatsApp and Messenger.

Depending on the circumstances, investigators may examine:

• Public posts, comments and videos;
• Private messages and group conversations;
• Photographs and associated metadata;
• Account subscriber information;
• Login history and IP address information;
• Location or geolocation data;
• Deleted messages or files recovered from a device;
• Communications between suspects, complainants and third parties.

CPS guidance confirms that investigators may seek account subscriber details, message or post content, IP login history and geolocation information. Publicly accessible material may initially be examined through open-source searches, although more intrusive methods must have an appropriate legal basis.

Social media evidence is not limited to cases involving offences committed online. It can be relevant to allegations of assault, harassment, stalking, sexual offences, fraud, drug supply, public order offences and many other criminal investigations.

For example, a photograph may allegedly place someone at a particular location. Messages may be used to suggest that there was an agreement between two people, while comments made after an incident may be relied upon as evidence of a person’s intentions or state of mind.

Can the Police Search Your Phone?

Where the police lawfully search premises or arrest a suspect, they may have powers under the Police and Criminal Evidence Act 1984, commonly known as PACE, to seize and retain a mobile phone or other digital device.

Sections 19 to 22 of PACE provide powers to seize and retain items believed to be evidence, including powers relating to information stored electronically. A device may be seized where there are reasonable grounds to believe that it contains evidence and seizure is necessary to prevent that evidence from being concealed, lost, altered or destroyed.

The fact that the police possess a phone does not necessarily mean that every item on it should be examined. Digital searches should be connected to a reasonable line of enquiry and proportionate to the issues under investigation. CPS guidance makes clear that digital devices should not simply be obtained and searched as a matter of routine, particularly where the device belongs to a complainant or witness.

Are Screenshots Enough to Prove an Offence?

A screenshot may be admitted as evidence, but its reliability can be challenged.

Screenshots can be cropped, edited or presented without the surrounding conversation. They may fail to show the date, time, account details or messages which came before and after the section displayed. The CPS therefore advises that screenshots should generally be a method of last resort where more reliable methods of obtaining the material have been explored or are inappropriate.

An important question is who actually created or sent the material. The fact that a post appeared on an account bearing a defendant’s name does not necessarily prove that the defendant personally wrote it.

The prosecution may attempt to establish authorship using:

• Evidence recovered from the defendant’s phone;
• Account registration details;
• Login and IP address records;
• The language or information contained in the messages;
• Evidence that the defendant controlled the account;
• Admissions made during a police interview;
• Evidence from other participants in the conversation.

An account may have been shared, compromised, impersonated or accessed by another person. Where authorship is disputed, the prosecution must still prove the defendant’s involvement to the criminal standard.

Does Social Media Evidence Have to Be Admissible?

Social media evidence is subject to the same general principles as other evidence. It must be relevant and admissible, and the court must consider its reliability and evidential weight.

Some posts or messages may also raise issues under the hearsay provisions contained in the Criminal Justice Act 2003. Hearsay broadly concerns statements made outside court which are introduced as evidence of the truth of what was stated. Such evidence is not automatically excluded, but it must fall within one of the statutory routes permitting its admission.

The purpose for which the material is introduced is important. A message may be relied upon to prove that particular words were communicated, rather than to prove that everything written in the message was true.

The defence should therefore consider not only what a post appears to say, but also why the prosecution wishes to rely upon it and whether the legal requirements for admitting it have been satisfied.

Can Deleted Social Media Posts Be Recovered?

Deleting a message or post does not guarantee that it has disappeared permanently.

Copies may remain on another participant’s device, in a cloud backup or within data recovered during a forensic examination. Certain forms of forensic extraction may recover deleted information, although recovery will depend on the device, operating system, application and extraction method used.

Anyone under investigation should avoid deleting, editing or attempting to conceal potentially relevant material. They should also avoid posting publicly about the allegation or contacting a complainant or witness without first obtaining legal advice.

Social Media Can Also Assist the Defence

Digital evidence does not only help the prosecution. It may provide important evidence supporting the accused.

Messages, photographs or posts may establish an alibi, contradict a complainant’s account, demonstrate an ongoing relationship or reveal inconsistencies in a witness’s evidence. Communications with third parties can sometimes be just as important as conversations between the complainant and suspect.

Investigators are required to pursue reasonable lines of enquiry which point towards innocence as well as guilt. Relevant unused material which may undermine the prosecution case or assist the defence must be properly considered for disclosure. This can include social media conversations, photographs and mobile phone material.

A proactive defence solicitor may identify relevant accounts, messages, dates or search terms which the police have overlooked and place pressure on investigators and prosecutors to preserve, obtain and review that material.

Conclusion

The police can use social media as evidence, and such material can have a significant impact on a criminal investigation or prosecution. However, social media evidence should never be considered in isolation.

The reliability of the material, the identity of its author, the surrounding context, the method by which it was obtained and the prosecution’s disclosure obligations may all require careful examination.

Where social media evidence forms part of an allegation, obtaining specialist criminal defence advice at an early stage can help ensure that potentially damaging material is properly challenged and evidence supporting the defence is identified and preserved.

Disclaimer: This blog is intended for general information purposes only and does not constitute legal advice. If you require legal assistance, please contact a qualified solicitor

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