Recommendation 6

HM Government Deferred

The use of computer evidence in criminal proceedings in England and Wales must follow the Common Law rule, namely, that a presumption will exist that the computer producing the evidential record was working properly at the material time and that the record is therefore admissible as real evidence. It is important to note that this presumption can be rebutted if evidence to the contrary is adduced. In that event, it will be for the party seeking to produce the computer record in evidence to satisfy the court that the computer was working properly at the material time. In the Horizon case, the Court of Appeal judgment concluded that a key issue in this case was how the Post Office, as prosecutor, presented Horizon as reliable despite evidence to the contrary, and it should have disclosed that evidence to the courts. The Court of Appeal referred to the High Court Judge Mr Justice Fraser’s previous findings that the Post Office, as prosecutor, demonstrated “a simple institutional obstinacy or refusal to consider any possible alternatives to their view of Horizon, which was maintained regardless of the weight of factual evidence to the contrary”. The Government has no plans to review the presumption, however, the Ministry of Justice (MoJ) will work with the Lord Chief Justice’s Criminal Procedure Rule Committee to 8 Post-pandemic economic growth: UK labour markets: Government Response ensure that any lessons learned from the Post Office Horizon IT Inquiry3 relating to the disclosure and introduction of evidence are reflected in the Criminal Procedure Rules.4 Pending the outcome of the ongoing Inquiry, a small working group is considering current practices and potential problems, drawing on case law and experience in this and other jurisdictions. With regards to the Law Commission, it included Technological Advances and Procedural Efficiency in the Criminal Courts5 as an idea for a potential area of law reform as part of its future 14th Programme of work. The Commission is now in the process of finalising the areas of law that will be included in the 14th Programme, which will be announced in due course. In the civil courts in England and Wales, the rules of evidence are governed by the Common Law, the Civil Evidence Acts and the Civil Procedure Rules. The effect of these is to provide judges and the courts with wide ranging case management powers over the admissibility of evidence. Furthermore, evidence in civil matters must be supported by a witness statement and a statement of truth. It is a feature of the adversarial nature of civil litigation that all evidence submitted is assessed by all parties as well as the judge and may be subject to challenge on admissibility and authenticity. The overall effect of the legislation and rules is to build in safeguards, and all evidence is subject to critical examination. At this juncture, the Government is not minded, nor have any of the various IT or legal organisations approached the Civil Procedure Rule Committee with a request to amend the Rules. Moreover, the Government has not moved to amend any of the statutory provisions relating to evidence. As with other reforms, the Civil Procedure Rule Committee, chaired by the Deputy Head of Civil Justice on behalf of the Master of the Rolls, would give any proposed changes their due consideration.