In the final day of the committee stage of progressing the Data Bill through the House of Lords before the Christmas break, efforts were made to convince the government of the urgent need to reconsider how computer evidence is handled in legal proceedings.
Currently, UK law assumes that computers are functioning correctly when they produce material used in court, which can be challenged but requires evidence that is often inaccessible without access to the computer system. This places the burden of proof on those who are least able to provide it.
It is surprising that this issue has not been resolved earlier, especially in light of the Post Office Horizon scandal last year. Therefore, colleagues and I are using the opportunity presented by the Data Bill to address this problematic legal practice.
The issue was raised during the second reading, questioning the government’s stance on reversing the burden of proof in computer evidence and emphasizing the importance of subjecting such evidence to scrutiny.
Computer evidence is hearsay
Barrister Paul Marshall highlighted that computer evidence is hearsay, with all its limitations. Modern computer programs, as evidenced by our everyday use, are not flawless upon release due to their complexity and scale.
Courts have long presumed the reliability of computer-generated information, placing defendants at a disadvantage in proving otherwise. This was evident in the Post Office Horizon case where the burden of proof was unfairly on the defendants.
The uncritical admission of computer evidence in the Post Office Horizon case was in itself an injustice
Programming knowledge and software contracts further support the argument that computer systems are not infallible and should be treated as such in legal proceedings.
More than five years after Justice Fraser’s ruling on the Horizon case, it is clear that the uncritical acceptance of computer evidence led to injustice. The burden of proof unfairly fell on the party without access to the system, while the party with access bore no responsibility to address potential unreliability.
The Data Bill should not dictate the acceptance or weight of computer evidence in court; rather, it should be subject to thorough examination as per standard procedure.
In response, Baroness Margaret Jones acknowledged the need to prevent miscarriages of justice and stated that the government is actively considering the matter, with plans to announce next steps in the new year.
As we enter the new year, it is hoped that the government will address this issue promptly.
