Computer Generated Evidence in Court

Computer Generated Evidence in Court :

On the other hand, where the printout contains information supplied to the computer by a person, it is hearsay if tendered for the truth of what is asserted, but may be admissible under either sections 23 or 24 of the Criminal Justice Act 1988. A statement can only be admitted under sections 23 or s 24 if its maker (or the original supplier) had (or may reasonably be supposed to have had) personal knowledge of the matters dealt with. Furthermore, under section 24 the creator of the document must have been acting in the course of a trade or business etc. A statement in a computer printout which has satisfied the foundation requirements of sections 23 or 24 can only be admitted on satisfaction of the additional requirements contained in section 69.

Section 69 is couched in negative terms making it clear that evidence which does not satisfy its requirements is inadmissible. The object of section 69 is to impose a duty on anyone who wishes to introduce a document produced by a computer to show that it is safe to rely on that document and it makes no difference whether the computer document has been produced with or without the input of information provided by the human mind and thus may or may not be hearsay (per Lord Griffiths in R v Shepherd at p 228).The operation of section 69, therefore, is not limited to printouts that fall within sections 23 or 24 of the 1988 Act.

Reliability if there is a dispute as to the admissibility of a computer printout in a criminal case involving a jury, the judge should hold a voir dire. A party seeking to admit a printout under section 24 (or section 23) must establish the foundation requirements of both that section and section 69. The judge, in deciding whether the prosecution has established these requirements, should apply the criminal standard of proof.

Although, as we shall see, the additional requirements of section 69 can be proved by certificate, the foundation requirements of section 24 (or section 23) must be proved by evidence unless the other party makes admissions or allows the statement to be read. There is also a third common law requirement, before the judge can decide on admissibility, namely that appropriate authoritative evidence must be adduced to describe the function and operation of the computer (eg R v Cochrane). In R v Governor of Pentonville Prison ex p Osman [1989] 3 All ER 701 it was argued that printouts were inadmissible because the prosecution had failed to prove the proper operation of the computers required by section 69. However Lloyd J held that where a lengthy computer output contains no internal evidence of may be legitimate to infer that the computer which made the record was functioning correctly.

In R v Shepherd the House of Lords held that it will very rarely be necessary to call an expert to prove that the computer is reliable. The defendant was charged with theft from a store. A store detective gave evidence that she had examined all the till rolls for the relevant day from the tills which were linked to a central computer, and that they contained no record of the unique product code for some goods found in the defendant's possession. She also said that there had been no trouble with the central computer. On appeal it was argued that the evidence did not satisfy section 69 since oral evidence that the computer was operating properly is not admissible unless given by a person qualified to sign the certificate under para 8(d) of Schedule 3 which provides that…

In any proceedings where it is desired to give a statement in evidence in accordance with section 69 above, a certificate –

(d) Purporting to be signed by a person occupying a responsible position in relation to the operation of the computer shall be evidence of anything stated in it and for the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of the knowledge and the belief of the person stating it.

Dismissing the appeal, it was held that section 69 can be satisfied by the oral evidence of a person familiar with the operation of the computer who can give evidence of its reliability and need not be a computer expert. Lord Griffiths said that…

Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. I suspect that it will very rarely be necessary to call an expert and in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.

This approach was adopted in Darby v DPP the Times 4 November 1994. The appellant had driven her car into an area of road subject to a 30 mph speed limit. At that point a police speed trap was being operated. A police officer was operating a device known as a GR Speedman and he concluded that the appellant had exceeded the speed limit by driving at 43 mph. It was submitted that the evidence of the reading of the GR Speedman was inadmissible if it was held to constitute a document. It was also contended that the evidence of the read-out required certification and that whilst oral evidence of certification would be admissible the police officer could not give such evidence as he was not an expert in the workings of the machine, only its operation.

Potts J adopted the approach of Lloyd LJ in the Shepherd case and assumed that the machine was a computer and that the visual image was a document produced by a computer. He also referred to the principle enunciated in Lord Griffiths' speech above and accordingly found no problem in holding that, on the basis of the evidence of the police officer, who was a trained and experienced operator of the device, the machine was working correctly. The appeal was consequently dismissed.

Thus it seems that the provisions in section 69 are capable of being applied without undue difficulty. However, it is interesting to note that Rose LJ pointed out that if the GR Speedman had been central to this case and if it had produced a printout on which the prosecution had relied then it may well have been caught by section 10(1) (c) (8) of the Civil Evidence Act 1968 (section 118(1) of PACE 1984 provides that a document within that Act has the same meaning as in Part I of the CEA 1968). This would have meant that as a document within the meaning of section 10(1) (c) it would have constituted a document requiring certification within the meaning of section 69 and the terms of para 8 of Sch 3. But it was the police officer's opinion evidence which was central to the case and that was capable of being corroborated by a technical device, the accuracy of which had been established. Thus it appears that the conditions for admissibility for computer output in a criminal case are less demanding if the evidence provided by the machine is merely corroborative. The ambiguities and illogicality arising from the complex conditions for admissibility of computer evidence can clearly be seen in the recent case of McKeown v DPP [1995] Crime LR 69 where the Divisional Court held that if it cannot be proved that the computer was operating properly the computer evidence will be inadmissible. This flies in the face of Lloyd LJ's dictum in the Osman case since the conclusion was reached despite the fact that evidence showed that the malfunction did not affect the accuracy of the information. The case concerned an appeal by Miss McKeown against her conviction for driving after having consumed so much alcohol that she was over the legal limit contrary to s 5(i)(a) of the Road Traffic Act 1988 and Sch 2 of the Road Traffic Offenders Act 1988. The appellant underwent a breath test using the Lion Intoximeter 3000 breath testing device. This machine has a visual display and a memory which stores a number of results. Four printouts were produced by the machine and these were certified by the officer in charge in accordance with s 69 PACE. On his statement the officer recorded the time shown on his watch as the machine was thirteen minutes out. The submission of the appellant was that the visual displays and printouts were inadmissible on the basis that since the timing device was thirteen minutes slow it could not be shown according to s 69(1) (b) that at all material times the computer was operating properly or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents. On behalf of the respondent it was argued that the words to a material degree should be read into the statutory provision and that the incorrect timing did not in itself render the evidence from the machine de facto inadmissible. Dr Williams, a director of the laboratories who supplied the breath testing machine, had been called as an expert witness on behalf of the prosecution. It was held that although he was not an electronics expert his qualifications and experience entitled him to give evidence in respect of the machine. The court accepted his evidence that the working and accuracy of the breathalyzer was not affected in anyway by the clock. However, despite these findings the court took the view that there was substance in the appellant's submission that on the wording of s 69(1) (b) the inaccurate timing mechanism on the machine rendered the print outs produced by it inadmissible. The appeal was allowed and conviction quashed wholly on the basis that, despite the evidence, the prosecution could not prove that the machine was working properly. The outcome, although in line with the statutory requirements of section 69(1) (b), is quite absurd since there was no question as to the reliability of the evidence.

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