By Stephen Mason, Barrister and Associate Research Fellow at the Institute of Advanced Legal Studies in London.

In August 2020, Alex Chalk MP, Parliamentary Under Secretary of State at the Ministry of Justice, invited Paul Marshall, Barrister, Cornerstone Barristers, 2-3 Gray’s Inn Square, Gray’s Inn, to submit a paper to the Ministry of Justice on suggestions for improving the existing approach to the proof in court proceedings of computer-derived evidence. A working group was established to consider the issue. At the time the paper was submitted to the Ministry of Justice, in November 2020, it was explained that it was intended to publish the paper.

That paper, slightly edited, is now published: Paul Marshall, James Christie, Peter Bernard Ladkin, Bev Littlewood, Stephen Mason, Martin Newby, Jonathan Rogers, Harold Thimbleby and Martyn Thomas CBE, ‘Recommendations for the probity of computer evidence’, Digital Evidence and Electronic Signature Law Review 18 (2021), 18-25. https://journals.sas.ac.uk/deeslr/article/view/5240

This follows on from the evidential presumption recommended by the Law Commission Evidence in Criminal Proceedings: Hearsay and Related Topics (1997) [https://www.lawcom.gov.uk/project/evidence-in-criminal-procedings-hearsay/] at paragraph 13.13: ‘In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time.’ The Law Commission made it clear that the words ‘mechanical instruments’ include computers and computer-like devices – even though computers and computer-like devices are not mechanical instruments.

For a demonstration that computers are not reliable (this is the frequently used word by judges), see the following:

  • Peter Bernard Ladkin, Bev Littlewood, Harold Thimbleby and Martyn Thomas CBE, ‘The Law Commission presumption concerning the dependability of computer evidence’, 17 Digital Evidence and Electronic Signature Law Review (2020) 1 – 14 https://journals.sas.ac.uk/index.php/deeslr
  • Peter Bernard Ladkin, ‘Robustness of software’, 17 Digital Evidence and Electronic Signature Law Review (2020) 15 – 24 https://journals.sas.ac.uk/index.php/deeslr

Computers are not ‘reliable’, and the Law Commission failed to produce any evidence to demonstrate that they are ‘reliable’. (For which see Chapter 6 in Stephen Mason and Daniel Seng, editors, Electronic Evidence (4th edn, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2017). [NOTE: the 5th edition will be published in 2021] http://ials.sas.ac.uk/digital/humanities-digital-library/observing-law-ials-open-book-service-law/electronic-evidence

Judges often refuse to make disclosure orders that are requested by the opposing party when computer evidence is in issue.

In criminal matters in particular, both parties need more resources to provide for the proper disclosure of evidence in electronic form and to enable the defence to properly challenge any assertions of ‘reliability’ when made by the prosecution. This issue was addressed by Nicholas Bohm and the author as long ago as 17 January 2011 in their written submission ‘Banking and Fraud’ to the House of Commons Treasury Committee. https://publications.parliament.uk/pa/cm201011/cmselect/cmtreasy/430/430vw25.htm

In the context of the Post Office Horizon scandal, see:

  • James Christie, ‘The Post Office Horizon IT scandal and the presumption of the dependability of computer evidence’, 17 Digital Evidence and Electronic Signature Law Review (2020) 49 – 70 https://journals.sas.ac.uk/index.php/deeslr

The issue of appropriate disclosure is at the heart of the provisions of article 6 rights under the European Convention of Human Rights and the Human Rights Act 1998.

It is to be sincerely hoped that the recommendations requested by the Ministry of Justice, and now published, are acted upon in the interests of fairness and justice.

In addition, it is hoped that the Law Ministers and Attorney-Generals of Small Commonwealth Jurisdictions request the Expert Group that developed the Model Law on Electronic Evidence (Commonwealth Secretariat, 2017) to revisit the assertion regarding ‘reliability’ at p 2: ‘The Group agreed that system reliability is the most sensible measurement’, and reconsider, in the light of the empirical evidence, article 7 and 7(a), which provides for the presumption that the integrity of the electronic records system is presumed to be working properly. As is normal with such pronouncements, no evidence was put forward to substantiate the assertion that ‘reliability is the most sensible measurement’ – one expects a group of lawyers that deal with facts to have produce evidence of what they meant by ‘reliaiblity’. https://thecommonwealth.org/sites/default/files/key_reform_pdfs/P15370_7_ROL_Model_Bill_Electronic_Evidence_0.pdf

Stephen Mason, December 2020

Stephen Mason  is a barrister and an Associate Research Fellow at the Institute of Advanced Legal Studies. He is also Visiting Lecturer at the School of Law, University of Tartu, Estonia and Visiting Professor at the National University of Singapore.

Stephen Mason and Daniel Seng, editors, Electronic Evidence (4th edn, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2017)

Electronic Signatures in Law (4th edn, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2016)

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