Computer Generated Evidence In Court

Introduction

We are living in what is usually described as an 'information society' and as
the business community makes ever greater use of computers the courts are going
to find that increasingly the disputes before them turn on evidence which has at
some stage passed through or been processed by a computer. In order to keep in
step with this practice it is vital that the courts are able to take account of
such evidence. As the Criminal Law Revision Committee recognised, 'the
increasing use of computers by the Post Office, local authorities, banks and
business firms to store information will make it more difficult to prove certain
matters such as cheque card frauds, unless it is possible for this to be done
from computers' (CLRC 1972, para 259).

Admissibility

The law of evidence is concerned with the means of proving the facts which are
in issue and this necessarily involves the adduction of evidence which is then
presented to the court. The law admits evidence only if it complies with the
rules governing admissibility. Computer output is only admissible in evidence
where special conditions are satisfied. These conditions are set out in detail
in section 69 of the Police and Criminal Evidence Act (PACE) 1984 (see further
Nyssens 1993, Reed 1993 and Tapper 1993).

In general the principles of admissibility are that the evidence must be
relevant to the proof of a fact in issue, to the credibility of a witness or to
the reliability of other evidence, and the evidence must not be inadmissible by
virtue of some particular rule of law (Keane 1994, pp 15-20; Tapper 1990, pp 51-
61).

Real evidence usually takes the form of some material object (including computer
output) produced for inspection in order that the court may draw an inference
from its own observation as to the existence, condition or value of the object
in question. Although real evidence may be extremely valuable as a means of
proof, little if any weight attaches to it unless accompanied by testimony which
identifies the object in question and explains its connection with, or
significance in relation to, the facts in issue or relevant to the issue.

This is illustrated in the case of R v Wood (1982) 76 Cr App R 23 where the
appellant was convicted of handling stolen metals. In order to prove that metal
found in his possession and metal retained from the stolen consignment had the
same chemical composition cross-checking was undertaken and the figures produced
were subjected to a laborious mathematical process in order that the percentage
of the various metals in the samples could be stated as figures. This was done
by a computer operated by chemists. At the trial, detailed evidence was given as
to how the computer had been programmed and used. The computer printout was not
treated as hearsay but rather as real evidence, the actual proof and relevance
of which depended upon the evidence of the chemists, computer programmer and
other experts involved.

The difficulty in the application of this rule lies in its interaction with the
hearsay rule. Evidence is hearsay where a statement in court repeats a statement
made out of court in order to prove the truth of the content of the out of court
statement (Sparks v R [1964] AC 964). Similarly evidence contained in a document
is hearsay if the document is produced to prove that statements made in court
are true (Myers v DPP [1965] AC 1001). The evidence is excluded because the
crucial aspect of the evidence, the truth of the out of court statement (oral or
documentary), cannot be tested by cross-examination. (1) The problem, however,
occurs because some statements, although in form assertive and inadmissible if
they were to originate in the minds of human beings, in fact originate in some
purely mechanical function of a machine and can be used circumstantially to
prove what they appear to assert.

The basis for this view was laid down in a case having little to do with
computers. In the Statute of Liberty [1968] 2 All ER 195 a collision occurred
between two vessels on the Thames estuary. The estuary was monitored by radar
and a film of the radar traces was admitted into evidence. Simon P rejected the
argument that the film was hearsay - he held that it constituted real evidence
and not hearsay and he placed it on a par with direct oral testimony. Where
machines have replaced human beings, it makes no sense to insist upon rules
devised to cater for human beings but rather, as Simon P said 'the law is bound
these days to take cognisance of the fact that mechanical means replace human
effort' (at p 196).

This