Computer says nothing
Should we reverse the presumption that machines tell the truth?
The government is considering whether to reverse a legal presumption that played a key role in Post Office scandal.
Until 25 years ago, it was necessary to prove that a computer was working properly before any readings it produced could be relied on in court. That was the effect of legislation passed in 1984.
But the requirement was felt to be too burdensome. In a decision that is still regarded as controversial, the legislation was repealed — and not replaced — in 2000.
Since then, there has been a rebuttable presumption under English common law that a computer was operating correctly at the material time unless there is explicit evidence to the contrary.
This morning, the Ministry of Justice announced a 12-week call for evidence on whether the law should be changed. Details of the consultation were released after this piece was published.
The 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. Ensuring people are protected from miscarriages of justice is vital and one part of the government’s plan for change.
Comment
The Ministry of Justice suggested that removing or changing the current presumption could mean defendants would be better equipped to interrogate computer evidence against them. But there would be more work for prosecutors to ensure that digital evidence stood up to scrutiny. That could increase the cost and length of criminal trials.
A footnote on recusal
Why shouldn’t the attorney general Lord Hermer KC say what decisions he has recused himself from taking, I asked yesterday.
No reason at all, according to a research paper published a few hours later by the think tank Policy Exchange.
Dr Conor Casey, a senior lecturer at in public law at the University of Surrey, acknowledged in the paper that, under a long-standing convention, the law officers do not disclose
what advice they have given; and
whether or not they have given advice on any particular issue.
But, he added,
parliamentarians are entitled to ask, and the attorney general is free to answer, questions about whether he would feel able to advise on an issue that might impact a recent client or if he feels conflicted about advising on a particular issue. The law officers’ convention does not provide grounds for the attorney general to refuse to answer a question about whether he takes himself to face a conflict of interest.
That reading of the convention was endorsed in the paper by three senior Conservative lawyers:
Lord Keen of Elie KC, shadow advocate general for Scotland, agreed that the question of whether a law officer has encountered a conflict of interest or had withdrawn from advising the government on a particular matter because of a conflict was not covered by the law officers’ convention. “The better view is that the Ministerial Code requires such a matter to be disclosed unless it can be shown that such a disclosure would not be in the public interest.”
Lord Faulks KC, a former minister of state at the Ministry of Justice, thought it was “of considerable importance that Lord Hermer should make clear whether he recused himself, or was recused, from involvement on matters concerning the Legacy Act insofar as they may have benefited his former client [Gerry Adams]. There is nothing in the law officers’ convention that precludes his doing so.”
And Sir Robert Buckland KBE KC, a former law officer and justice secretary, said there was “no constitutional basis for Lord Hermer to refuse to answer questions posed by parliamentarians or the public about whether or not he had been recused or had recused himself from involvement in relation to a matter in which he faced a possible conflict of interest. Parliament should be told immediately whether he was excluded from decisions about legal matters that posed a possible conflict of interest in view of the interests of his former client, Gerry Adams.”
There was no comment on the issue from the attorney general’s office yesterday.
Update 1745: Hermer responded to a written question in the House of Lords today. He said:
I am the government’s chief legal adviser but, by long-standing convention, the fact that I, or a fellow law officer, may have advised or not advised, and the content of our advice, is not disclosed outside government, as is reflected in the Ministerial Code.
This is a long-standing policy observed by successive governments. It is also an important legal principle, as confirmed by the Bar Council, that “barristers do not choose their clients, nor do they associate themselves with their clients’ opinions or behaviour by virtue of representing them”.
Law officers, by their experience and professional nature, will sometimes have an extensive legal background and may have previously been involved in a wide number of past cases. That is why there is a robust system for considering and managing any conflicts that may arise, in line with the professional obligations of lawyers.
There is the established process on ministerial declarations, with previous employment and interests having been published for the public record. In general, there has always been an established rigorous system in place within the attorney general’s office to ensure that a law officer would not be consulted on any matter that could give rise to a potential conflict of interest. This system sits alongside the declaration of interest system overseen by the prime minister’s independent adviser on ministerial standards.
If a law officer publicly confirmed specific matters where they were recused, this would likely disclose that the other law officer was therefore giving advice or infer1 that legal advice had been requested by the government on a specific matter, which would risk a breach of the law officers’ convention.
In addition, a lawyer cannot breach a client’s confidentiality in relation to advisory work that had previously not been made public so this would limit the ability of a law officer to publish in full their previous caseload and conflicts schedule. In that regard, I have been through the same process as previous law officers, none of which have gone as far to proactively disclose their specific conflicts of interest for the reasons set out above.
As I set out to the justice select committee (15 January 2025), I confirmed that as a private barrister prior to my appointment as attorney general, I represented Gerry Adams on an issue unconnected to the Legacy Act.
Sic: he must mean “imply”.
On the “footnote on recusal”: it is important to note a distinction which is not clearly spelt out in Conor Casey’s Policy Exchange paper to which you link but, reading between the lines, he clearly accepts - and is plainly right.
That distinction is between a general question (“has the AG advised on issues where he has a conflict”) and a specific question (“has the AG advised/been asked to advise on issue X, where there seems to be a conflict”).
The problem Casey skates round is that at least one of the questions that he cites is a specific question (Jenrick’s “has the AG recused himself from advising on any matter involving Gerry Adams?”).
If the AG answered that positively (“yes I have recused myself”) he would in effect be disclosing that the Law Officers have been asked for advice on the Adams matter.
That would breach the convention (rightly accepted by Casey, for the reasons he gives) that the Law Officers do not say whether they have advised on any particular matter.
Your opening paragraphs are an accurate summary of the position so far as they apply to the criminal law. The position in civil proceedings is more complicated. In 1992 my firm acted for the successful claimant in R v Coventry Justices, ex parte Bullard, a case concerning the admissibility of computer records said to show that the claimant had not paid the community charge (the poll tax) imposed by the local authority. At the time the Civil Evidence Act 1968, which contained provisions somewhat similar to those in PACE, did not apply to magistrates’ courts. The outcome was that the regulations relating to the evidence required to establish non-payment of the community charge were amended to allow local authorities to rely on computer records. Although the proceedings were civil in nature, detention in custody was the ultimate sanction for non-payment.