“Laptop says responsible” – an introduction to the evidential presumption that computer systems are working appropriately
The Post Office prosecutions scandal is the UK’s biggest mass miscarriage of justice of our instances.
The scandal, nonetheless, can be troublesome to write down about.
Partly it’s because most of the private and systemic failures within the scandal are so maddening that any try at goal rationalization and indifferent commentary can rapidly change into a rant.
And it’s partly as a result of the matter is so advanced that only a few could have mastery of all of the authorized and different paperwork and proof. For instance, the key 2019 judgment of Mr Justice Fraser – a judgment which additionally occurs to be one of many biggest forensic workout routines undertaken by any fashionable decide – is over a thousand paragraphs lengthy, even with out its appendices.
Nonetheless, there have been some excellent accounts and analyses of this sorry state of affairs. Specifically, the journalist Nick Wallis has produced a book which should be read widely on the mess. There may be additionally now a statutory inquiry which is searching for to unravel what occurred, and why it occurred, and the way it mustn’t occur once more.
The main focus of most of the accounts and far of the commentary has, rightly, been on the quite a few private and systemic failures – particularly these of the Submit Workplace administration and their attorneys, and people of the software program supplier Fujitsu.
These private and systemic failures are central to what occurred: not one of the miscarriages of justice would have occurred with out choices by people (and teams of people) which may and will have been made otherwise.
And a few of these choices are such that the people concerned ought to themselves be prosecuted.
However this publish – and the posts which is able to comply with this, as a part of a sequence – is on one other failure which was a part of the combination.
That is the failure of the regulation itself and of the procedures of the courts.
And if something, this failure of the regulation itself and of the procedures of the courts makes the person decision-makers extra culpable – for they knew (or ought to have recognized) how harsh the relevant regulation and process could be on the defendants, however the defendants could be prosecuted anyway.
Nothing in an account and rationalization of the relevant regulation and process ought to be taken to restrict the culpability of the Submit Workplace administration and their attorneys, and of these on the software program supplier Fujitsu.
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On this first publish allow us to begin with what attorneys known as a “presumption”.
The basic assertion of this presumption is as follows:
“Within the absence of proof on the contrary, the courts will presume that mechanical devices had been so as on the materials time”.
Right here “mechanical devices” embody computer systems.
So, in different phrases, computer systems are presumed to be working appropriately, except there may be proof on the contrary.
As a “presumption” this doesn’t imply that the courtroom will take this view every time, no matter circumstance.
It’s as an alternative a starting-point which might be rebutted.
It’s what the courtroom will take to be the state of affairs, except it’s glad by proof that it’s not the state of affairs.
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There may be nothing inherently unsuitable a few courtroom utilizing presumptions: certainly, with out presumptions, the courts couldn’t correctly function.
Presumptions preserve virtually all authorized instances manageable. For instance, a contract shall be presumed to not be a fraudulent instrument, except it’s proven to be a faux; or a defendant could also be presumed to not be insane, except proven to be insane; and so forth.
Presumptions inform us what shall be taken to be the state of affairs – and which get together has the onus of exhibiting whether or not that state of affairs just isn’t appropriate.
The issues with any presumption are in what it presumes, and in what is required to rebut it.
If the presumption is unrealistic in and of itself, or if rebuttal is unrealistic, then the presumption converts from being one thing that assists the course of justice to one thing that causes miscarriages of justice.
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The presumption that computer systems are presumed to be working appropriately, except there may be proof on the contrary is what attorneys name “a presumption of proof”.
Because of this a courtroom might be glad {that a} related reality might be established simply by pc data, except there may be proof that the pc just isn’t working correctly.
And so when the pc document reveals, for example, a monetary shortfall by postmaster or postmistress, the courtroom will settle for that as proof of an precise shortfall – except the defendant can present that the pc was not working appropriately.
Briefly, when the pc document is the essence of a prosecution case: pc says responsible.
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This evidential presumption has not all the time been a part of English regulation.
In 1984 a regulation was handed which pointed this presumption in the wrong way.
Section 69 of the Police and Criminal Evidence Act 1984 supplied:
This provision pointed the presumption within the different path: it was for the prosecution to indicate that the pc was working appropriately, and never for the defendant to indicate that pc was not working appropriately.
This part 69 changed the outdated frequent regulation place the place, as said above, within the absence of proof on the contrary, the courts will presume that mechanical devices had been so as on the materials time.
Had part 69 nonetheless been a part of the regulation when the Submit Workplace introduced its prosecutions of post-masters and post-mistresses then the course of these instances could properly have been completely different.
Part 69, nonetheless, was repealed in 1999:
The impact of this repeal was that the outdated frequent regulation presumption returned, that means that’s was once more for the defendant to indicate that a pc was not working appropriately, fairly than for the prosecutor to indicate that the pc was working appropriately.
How this repeal happened, and whether or not the explanations for that repeal had been sound, would be the topic of the following publish on this sequence.
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Sources
Appreciable help for this sequence of posts has come from the next articles:
The Law Commission presumption concerning the dependability of computer evidence (2020)