The UK government has launched a call for evidence about the use of computer evidence in court, Current principles around the use of evidence generated by computer software in criminal proceedings were established over two decades ago by the Youth Justice and Criminal Evidence Act 1999, with the common law presumption that a computer was operating correctly unless there is evidence to the contrary.
The limitations of this presumption have been highlighted starkly by the Post Office Horizon scandal, which saw hundreds of sub-postmasters wrongly convicted. This was due to faults in the Horizon accounting software system, clearly demonstrating the fallibility of evidence produced by software.
The current presumption was introduced in 2000 following a recommendation of the Law Commission following a consultation. Given the use of software and computing systems has increased exponentially in the last 25 years since the Law Commission recommendation, along with changes in the way we use these software systems, the UK government is inviting views about whether the time is now right to re-look at this presumption.
Whilst considering this, the government points out that “computer evidence” now proliferates in many prosecutions, particularly in crimes such as fraud, rape and serious sexual offence cases. Computer evidence is also widely used in cases which see high volumes of prosecutions such as driving offences. Therefore, it is important when examining this area to consider any ramifications for the effective functioning of the criminal justice system.
There also needs to be clarity about how such evidence is defined, to avoid unintentionally bringing into scope anything which should not be included, or indeed excluding anything which we do consider should be in scope. What constitutes digital evidence could be wide enough to include text messages, social media posts, digitally captured photographs etc. In considering changes to the law relating to the presumption of reliability of such evidence, the government considers it important to draw a distinction between this wider digital evidence and evidence which has been specifically generated by a computer system or software.
The government has said that it welcomes views from organisations and individuals with experience of the criminal justice system, along with those with expertise in computers/software and the usage of the evidence generated from them.
The call for evidence closes on 15 April 2025.
