Use of evidence generated by software in criminal proceedings: Call for Evidence

The Ministry of Justice has published a call for evidence on the use of evidence generated by software in criminal proceedings.

Learning from the Post Office Horizon scandal, the MoJ is reevaluating the current principles concerning digitally produced evidence, which were established over two decades ago. Currently, such evidence is deemed to be admissible unless proven otherwise.

With the development of technology, digital material has extended from text messages and images to evidence created by artificial intelligence and algorithms. This review is important to determine whether the current common law presumption is effective and fair for the criminal justice system, particularly considering how digital evidence is used in cases of fraud and violence against women and girls.

This will be a virtual meeting where, collectively, we will work through each question outlined in the call for evidence. techUK will then submit a response on behalf of its membership based on your input during the session.

The MoJ are currently collecting evidence for the following questions:

1. The current common law (rebuttable) presumption is that computers producing evidence were operating correctly at the material time.

(b) How easy or difficult do you believe it is at present for this presumption to be effectively rebutted?

2. Are you able to provide examples from other jurisdictions or situations where the reliability of software must be certified?:

3. If the position were to be amended, what in your opinion would be the most appropriate and practicable solution given our aims and objectives set out above? It would be helpful if your answer could address as many of the below as possible:

a) What procedural safeguards need to be in place to ensure your proposed solution is effective?

b) How might we ensure that any proposed solution is, as far as is reasonable possible, future-proofed?

d) If your proposed solution requires the use of expert witnesses (either jointly or singly instructed), what expertise and qualifications would that person require? To your knowledge are there sufficient such people at present?

4. In your opinion, how should ‘computer evidence’ for these purposes be best defined?

a) Do you agree that evidence generated by software, as set out above, should be in scope, and that evidence which is merely captured / recorded by a device should be out of scope? Please provide a rationale for your answer.

i) Can you provide specific examples of the type of evidence you believe should be in scope?

ii) Can you provide specific examples of the type of evidence you believe should be out of scope?

5. Are there any other factors which you believe are important for us to consider?

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The techUK Justice and Emergency Services Programme represents tech firms operating in the public safety, criminal justice, and blue light markets. We create strong relationships between members and public sector customers, encouraging industry engagement, and unlocking innovation. Visit the programme page here.