The Ministry of Justice has published a call for evidence on the use of evidence generated by software in criminal proceedings.
The call for evidence is to help the Ministry better understand how the current presumption concerning the admissibility of computer evidence is working in practice, and whether it is fit for purpose in the modern world. The limitations of this presumption have been highlighted starkly by the Post Office Horizon scandal, which saw hundreds of sub-postmasters wrongly convicted based on evidence which is now known to have been false, due to faults in the Horizon accounting software system. This clearly demonstrated the fallibility of evidence produced by software.
The Ministry wishes to increase its evidence base and understanding of the ways in which evidence produced by software is handled in criminal proceedings. This includes how this evidence is treated in other jurisdictions, and any challenges or issues with the current position in this country.
Current Common Law Presumption
Since 2000 there has been a common law (rebuttable) presumption that the computer was operating correctly at the material time. The presumption is a rebuttable one, meaning that if it can be shown that the software may not have been functioning correctly, the burden shifts to whoever is seeking to rely on the evidence to prove that it was.
Proposed scope of any reform to the law
The Ministry is keen that any changes to the current common law presumption are carefully defined to only include that evidence which is generated by software, including Artificial Intelligence and algorithms. It believes that evidence which is merely captured or recorded by a device should be excluded.
Questions
The Ministry is seeking responses to a series of questions set out at the end of the call for evidence.
How to respond
You can respond to the call for evidence by email to computer.evidence@justice.gov.uk by 15 April 2025. The EWI will be submitting a response to the call for evidence. If you would like to provide input into the EWI's response, please contact us at policy@ewi.org.uk by 31 March 2025.