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] Crim 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 breathalyser 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.
The McKeown case also gives rise for concern in that the defence raised the
smoke-screen of concentrating on the fallibility of the computer evidence rather
than the reliability of such evidence. This point was raised by Dr Castell when
he delivered The VERDICT Report to the Treasury in 1987. (9) He was perturbed
that the current law could be effectively exploited by defence counsel to
undermine a prosecution. The Law Commission in its Consultation Paper (Law Com
CP No 138) claim that there is support for this contention in that judges
commented on the lengthy cross-examination of prosecutions’ computer experts. It
will be recalled that the standard of proof in a criminal case for evidence
tendered by the prosecution is ‘beyond all reasonable doubt’. The intricacy and
complexity of many modern computer systems may make it relatively easy to
establish a reasonable doubt in the juror’s mind as to proper functioning of the
computer. Using the example of the McKeown case it appears that in the absence
of a presumption that the computer is working means that it may be quite easy to
raise such a smoke screen. It would seem perfectly feasible that where there are
doubts as to the reliability of computer generated evidence these doubts should
not go to the issue of admissibility but rather to the weight of the evidence.
As we have seen in Shephard s 69 only applies where computer generated documents
are tendered in evidence and there is an affirmative duty on those introducing
computer evidence to show that at all times it is safe to rely on it. Thus when
applying a literal interpretation of the statutory provision illogicality and
confusion reigns as demonstrated by the McKeown case. Furthermore it has been
held that s 69 does not apply where a witness uses computer generated evidence
to refresh his or memory nor where it is used by an expert to reach a conclusion.
In Sophocleous v Ringer [1988] RTR 52, another driving with excess alcohol case,
evidence was given against the accused by an analyst who had used a computer
which produced a graph illustrating the levels of alcohol in the blood stream.
The graph was not put in evidence but the analyst was allowed to look at it to
refresh her memory. As the graph had not been put in evidence the court held
that s 69 did not apply.
The same outcome is illustrated in a recent Court of Appeal case, R v Golizadeh
[1995] Crim LR 232. In this case a brown substance was found in the possession
of the appellant which turned out to be a Class A drug (opium). The susbstance
was analysed through a machine which produces a print out in the form of a
pattern; this pattern is then interpreted by an expert to determine the chemical
constituents of the substance. In arriving at his conclusion that the substance
was indeed opium the expert witness relied on his own interpretation of the
print out and the opinion of another expert called to give evidence.
One ground of appeal was that under s 69 PACE the evidence should have been
excluded on the basis that it was based on the computer print outs and was
therefore inadmissible. The Court of Appeal rejected this argument and held that
s 69 did not apply. Morland J reiterated Lord Griffith’s speech in the Shephard
case whereby he stated that the object of s 69 “requires anyone who wishes to
introduce computer evidence to produce evidence that will establish that it is
safe to rely on the documents produced by the computer”. Thus it is clearly the
case that s 69 will only apply where computer print outs are actually put in
evidence. Since in the present case the print outs had merely been used by the
experts in reaching their findings as to the chemical constituents of the
substance s 69 had no application on the facts of the case. In the words of the
Law Commission in its recent Consultation Paper “if it is safe to admit evidence
which relies on and incorporates the output from the computer, it is hard to see
why that output should not itself be admissible” (Law Com CP No 138, para 14.13).
The irony of the situation is that it appears perfectly acceptable for evidence
to be adduced which is based on computer generated print outs but at the same
time if the computer evidence itself was to be presented to the court then the
hurdle of complying with s 69 would have to be surmounted.
Are the special provisions necessary?
As we have seen, the statutory provisions impose special conditions on the
admissibility of computer output. Are these justified? What is it that is
special about computer-generated documents and that distinguishes them from
their paper equivalents? It is obvious from examination of the admissibility
requirements that computer evidence is regarded as suspicious in several
respects The main problem is concerned with the authentication and accuracy of
computer records. It is almost as if the technology is believed to be inherently
inaccurate. (10) Section 69 PACE requires some minimum proof of accuracy before
the document is admissible. The court must be satisfied of the reliability of
the statement as a true record of what the witness observed and also of its
authenticity as an accurate record of what was intended to be recorded. As a
result it is necessary to show that at all material times the computer had been
functioning properly, or at least that any malfunction had not affected the
accuracy of the information.
It was envisaged by the Criminal Law Revision Committee (CLRC 1972, para 259)
that there would be many cases where the document might have become corrupted by
software errors or hardware malfunctions. It is the contention of this article
that this suspicion was probably unfounded on the basis that there has been has
been no tangible evidence to date illustrating why computer records are likely
to be less accurate than those contained on paper. Paper based records are also
susceptible to alteration and deterioration yet, where it is alleged that such
alteration has taken place, the paper document remains admissible and the
challenge goes to the question of its weight as evidence, to be decided on the
basis of the evidence called to prove falsification or authentication.
Regarding documentary evidence para 3 of Schedule 2 to the Criminal Justice Act
1988 provides that:
“In estimating the weight, if any, to be attached to … a statement [given in
evidence under section 23 or section 24] regard shall be had to all the
circumstances from which any inference can reasonably be drawn as to its
accuracy or otherwise”.
Although no particular circumstances are specified, it seems safe to assume that
regard may be had, for example, to the following matters: whether the person who
made the statement in a document did so contemporaneously with the occurrence or
existence of the facts dealt with in the statement; whether any person who
supplied the information did so contemporaneously with the occurrence or
existence of the facts dealt with in that information; and whether or not such
persons or the ‘creator’ of the document containing the information had any
incentive to conceal or misrepresent the facts.
In stark contrast to this, unless it can be shown that there is no chance of
unauthorised use of a computer system, or of system failure, the same document
stored on computer is inadmissible under the additional requirements of section
69 PACE (eg McKeown v DPP).
Doubts concerning the accuracy of information recorded on computers apply
equally to paper-based systems, as do those concerning authentication. As with
paper records, the necessary degree of authentication can be proved through oral
and circumstantial evidence, if available, or via technological features of the
system or record. (11) Although a paper document can be authenticated by its
author appending a signature, various technical ways of authenticating c