Since 2000, there has been a common law rebuttable presumption that computers work correctly and evidence generated by software is accurate, unless there is explicit evidence to the contrary.
However, the use of IT has changed dramatically in the past quarter century, and the wrongful convictions of hundreds of innocent sub-postmasters in the Post Office Horizon scandal highlighted the fallibility of digital evidence.
Justice minister Sarah Sackman KC said: ‘We must learn the lessons of the Post Office scandal.
‘A blanket “no questions asked” acceptance of the accuracy of digital evidence can have a devastating impact on people’s lives. We need to carefully consider how we can both use and interrogate digital evidence in court.’
Given the proliferation of computer evidence in many prosecutions, including in rape and serious sexual offences as well as crimes such as fraud, any change to the law of evidence could have a major impact on how quickly cases can be completed. The MoJ suggests, for example, that a distinction might need to be drawn between general digital evidence like text messages or social media posts, and evidence that has been specifically generated.
It notes the Post Office miscarriages of justice were due to deliberate failures to interrogate and disclose evidence, which prevented postmasters from challenging the reliability of Horizon. A change to the presumption would not provide protection where parties mislead the court—although such deceit would be covered by perjury. However, changing or removing the presumption would place more onus on the party supplying the digital evidence to ensure it is robust.
The call for evidence is open until 15 April: see here to respond.
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