Demands for changes to ‘barmy’ rules on digital evidence have government’s ear

The sheer scale of injustice and lying within the Post Office Horizon scandal has compelled the federal government to take into account fast-tracking changes to the rules on using digital evidence in court docket.

Following a Westminster Hall debate in March, a minister agreed the federal government would have a look at the problem and replace on progress earlier than and after the summer time recess of Parliament.

Westminster Hall debates give MPs a chance to increase points and obtain a response from a authorities minister. They pressure authorities ministers to the desk and put flags within the floor to say “we are looking at this, we are interested and we expect to see some action”, in accordance to Darren Jones, Labour MP for Bristol North West, who triggered the controversy on digital evidence final month.

The Post Office Horizon scandal noticed a whole bunch of people that personal and run Post Office branches prosecuted, with some despatched to jail primarily based on pc evidence that has since been proved to be fallacious. (See timeline of Horizon scandal articles since Computer Weekly broke the story in 2009).

The scandal has already seen the largest group referral of potential miscarriages of justice to the Court of Appeal, and there are calls for changes in how digital evidence is utilized in court docket, backed by evidence of its inadequacy.

Before 1999, prosecutors who relied on digital evidence in court docket had to show that the pc system had labored because it ought to. However, the change to the rules that 12 months meant that it’s now presumed the pc labored appropriately except there may be specific evidence to the opposite.

Jones mentioned the Westminster Hall debate had a constructive end result, with an acknowledgement for motion to be taken. “It looks like ministers think there is potential to improve this law more quickly over the course of this calendar year,” he mentioned.

The difficulty has already been raised with the Criminal Procedure Rule Committee chair, and Computer Weekly understands that this has triggered a strategy of consideration that can take months. But Jones mentioned he’s “not entirely convinced the Criminal Procedure Rule Committee has broad enough powers” and that it requires statutory intervention from ministers.

Jones is, nevertheless, constructive that there might be a sooner decision. “The debate led to a helpful dialogue with digital minister Matt Warman about what we will do about this. I don’t know what the reply is by way of what you substitute it with, however I really helpful it go to the Law Commission.

“The minister suggested that takes too long and this needs to be resolved urgently, which is a good answer from a minister in these circumstances because they normally try to bat you off,” he added.

Jones mentioned court docket rules have failed to preserve tempo with know-how advances. Today, virtually each facet of life and work includes some digital interplay, however there may be little understanding how computer systems work or why they fail to work correctly at occasions.

“The elephant in the room on this point is that the law has not been effectively updated since the late 1990s, which in the context of technology is barmy,” mentioned Jones. “Technology has been transformed in that period of time, but the rules around digital evidence have not.”

He added that whereas there have been legislative changes round issues resembling knowledge and privateness, there has not been an replace on the legislation on digital evidence.

The legislation has not been successfully up to date for the reason that late Nineteen Nineties. Technology has been reworked in that time period, however the rules round digital evidence have not
Darren Jones, Labour MP

Jones was initially made conscious of the problem after barrister Paul Marshall wrote to him detailing the problem.

“It is wrong that the law says the computer is always right unless the defence can prove otherwise. The [subpostmaster] defendants really had no power to be able to prove that when they were being prosecuted,” mentioned Jones. “It is clear now that this is one of the biggest miscarriages of justice in British legal history.”

He mentioned that, past the rule itself, there are questions in regards to the capability of courts to perceive computer-based evidence. “It is also about the competence and capacity of the courts to deal with this type of evidence,” he added. “You would hope, following a miscarriage of justice of this scale, that there will be momentum to try to resolve all these issues.”

Marshall, a barrister at Cornerstone Barristers, has labored on the instances of subpostmasters despatched to jail primarily based on flawed evidence, who will hear later this month whether or not the Court of Appeal will quash their convictions.

He mentioned, among the many many failures recognized within the Horizon scandal, the failures of the court docket system aren’t distinguished, however ought to be.

“While it is a scandal in respect of the sheer mendacity of the Post Office as a public institution, and catastrophic failures in its governance and corporate leadership, it is also a scandal in the scale of the systemic failure of the court system,” mentioned Marshall. 

“Future generations are likely to look askance at English law’s – and English courts’ – apparent inability to engage satisfactorily with digital evidence, an inability that the Post Office scandal has all too painfully exposed.”

He added that if judges are unable to establish whether or not a trial is truthful or not, the entire court docket system is undermined. “Were courts an airline that failed so frequently, it would be grounded and no one would fly. But there is no choice it’s the only system available,” he mentioned.

Referring to the Post Office Horizon scandal, Marshall mentioned: “That the courts routinely accepted the Post Office’s evidence, means that the courts failed of their goal to successfully take a look at and weigh the related evidence. 

“The courts plainly didn’t achieve this as a result of the evidence of widespread failure of the Horizon system was not earlier than the court docket. The cause for that is largely to do with inadequacies within the legislation involved with the reliability of computer-generated evidence that took a fallacious flip in changes made on advice by the Law Commission.

“That the consequence of failure is that large numbers of people were imprisoned and their and their families lives and livelihoods wrecked ought to be a matter of serious public concern.”

Marshall criticised the present authorities inquiry into the Post Office scandal, chaired by former decide Wyn Williams, which he mentioned won’t examine court docket failures.

“The inquiry phrases of reference don’t lengthen to these crucial points. The cause is sort of actually that, have been the query to be answered candidly, it will be the event for institutional embarrassment and additional erode public confidence within the felony justice system. 

“Both the courts and the government, for different reasons, have an interest in the hard questions remaining unaddressed and unanswered,” he mentioned.

Marshall added that it’s inadequate to blame the Post Office for having abused the processes of the courts when the court docket itself “should be effective in preventing its process from abuse on this scale”.

Both the courts and the federal government, for completely different causes, have an curiosity within the laborious questions remaining unaddressed and unanswered
Paul Marshall, Cornerstone Barristers

“The Post Office, accountable in its conduct of prosecutions to nobody however itself, gamed the system for its personal benefit for the higher a part of 15 years – and, from not later than 2015, sought to give the impression that it had not finished so, denying all information of simply how rackety the Horizon system was, within the hope of brazening it out.

“The Post Office knew, in all probability from 2010 and indisputably from no later than 2015, that its Horizon system was severely unreliable and susceptible to failure. Furthermore, it knew from about 2013 that its prosecutions of its postmasters have been in lots of situations severely flawed. 

“It stopped prosecuting from 2014, but from that time until 2019 maintained the fiction that it believed the Horizon system was reliable and robust.”

This perception by the Post Office was described by a High Court decide, throughout a bunch litigation, because the modern-day equal to sustaining that the Earth is flat.

It was that group litigation introduced by 550 claimant subpostmasters within the High Court that laid naked the scandal, however the victorious claimants have been left simply £11m of the £57.75m damages after authorized and funding prices have been taken out.

“The cost and unsatisfactory outcome for the claimants – where the cost of bringing the claims deprived them of the substantial benefit of bringing the legal proceedings – and the fact that, but for it, the Post Office would have kept the lid on the truth coming out, raise serious questions for the quality and effectiveness of the English justice system,” mentioned Marshall.

Stephen Mason, a barrister not in apply, has been researching and recommending change on using digital evidence in court docket since 2004.

He mentioned that the Horizon scandal has uncovered critical weaknesses within the English authorized system in relation to the best way evidence from units managed by software program code is assessed and judged.

“It is getting worse: just think what software controls now, including motor vehicles. Just one example – ask a police officer whether they routinely check the software in motor vehicles have been involved in collisions, etc, and how little they know and that they rely on the manufacturers,” mentioned Mason.

“I suggest the Minister of Justice might be advised to consider that this is a serious issue, because the problem cannot conceivably only have caused problems with the Post Office prosecutions,” he added.

Mason mentioned that there are two choices for the federal government to make changes: “First, for the Court of Appeal, perhaps in the 23 April 2021 judgment of subpostmaster appeals, to explicitly overrule the presumption. This would be short and sweet. Second, for the Law Commission to revise the presumption and make appropriate recommendations. This will be longer, but will probably work.”

On 23 April, 42 subpostmasters, prosecuted for monetary crimes primarily based on evidence from the flawed Horizon system, will hear if their convictions are quashed. In December 2020, six subpostmasters, who have been initially prosecuted in a magistrates’ court docket, had their convictions quashed in Southwark Crown Court.

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