Mr Stephen Mason, Associate Research Fellow, Institute of Advanced Legal Studies — Written evidence (NTL0002)
I offer a summary of sources that the inquiry might like to consider in relation to items 2 and 3 of the inquiry:
3. Do new technologies used in the application of the law produce reliable outputs, and consistently so? How far do those who interact with these technologies (such as police officers, members of the judiciary, lawyers, and members of the public) understand how they work and how they should be used?
4. How do technologies impact upon the rule of law and trust in the rule of law and its application? Your answer could refer, for example, to issues of equality. How could any negative impacts be mitigated?
Since 2010, I have written a separate chapter on the presumption that computers are reliable in the practitioner textbook Electronic Evidence. The 5th edition has just been published, and is available as with the 4th edition, as open source, published by the Institute of Advanced Legal Studies and University of London:
Stephen Mason and Daniel Seng, editors, Electronic Evidence and Electronic Signatures (5th edition, 2021) https://www.sas.ac.uk/publications/electronic-evidence-and-electronic-signatures
Below are some of articles published last year and this year on this topic that the inquiry might find to be of interest (notice the article requested by the Ministry of Justice for the Criminal Procedure Rules Committee):
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/deeslr/issue/view/578
Peter Bernard Ladkin, ‘Robustness of software’, 17 Digital Evidence and Electronic Signature Law Review (2020) 15 – 24
https://journals.sas.ac.uk/deeslr/issue/view/578
Paul Marshall, ‘The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story’, 17 Digital Evidence and Electronic Signature Law Review (2020) 25 – 48
https://journals.sas.ac.uk/deeslr/issue/view/578
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/deeslr/issue/view/578
The article below was prepared from a report requested by Alex Chalk MP, Parliamentary Under Secretary of State at the Ministry of Justice, who invited Paul Marshall, Barrister in August 2020 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. The paper has been sent by the Ministry of Justice to the Chair of the Civil Rules Committee. It is anticipated that the Ministry will also pass it to the Chair of the Criminal Procedure Rules Committee.
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’, 18 Digital Evidence and Electronic Signature Law Review (2021), 18-25 https://journals.sas.ac.uk/deeslr/article/view/5240
NOTE: this URL will change in October/November 2021
Draft Convention on Electronic Evidence, for which see article 4 – replicated at para 7.128 in Electronic Evidence and Electronic Signatures
https://journals.sas.ac.uk/deeslr/article/view/2321
A more recent article is:
Michael Jackson, ‘An approach to the judicial evaluation of evidence from computers and computer systems’, 18 Digital Evidence and Electronic Signature Law Review (2021) 50 – 55
https://journals.sas.ac.uk/deeslr/article/view/5289
NOTE: this URL will change in October/November 2021
The articles above are important, because the issue of the use of technologies in legal proceedings is discussed in chapter 5 of.
Of particular relevance to tools used by digital evidence professionals is the case of:
Bevan v The State of Western Australia [2010] WASCA 101, (2010) 202 A Crim R 27
Referred to in Electronic Evidence and Electronic Signatures: 5.48, 5.49 fn 2, 9.70 fn 1
Bevan v The State of Western Australia [2012] WASCA 153, 2012 WL 3298167
Referred to in Electronic Evidence and Electronic Signatures: 5.51 fn 1, 5.58 fn 1, 5.59 fn 1, 5.61 fn 2, 9.70 fn 1
This case illustrates the nature of the problem.
6 August 2021