CILEX calls for balanced digital evidence reforms

In response to the Ministry of Justice's call for evidence regarding the use of digital evidence in criminal trials, the Chartered Institute of Legal Executives (CILEX) has voiced support for reform but warns against excessive burdens on legal proceedings. Referring to the implications of the Post Office Horizon scandal, which highlighted the risks associated with presuming ‘the computer is always right,’ CILEX argues that while a review is necessary, reforms should not swing too far in the opposite direction, creating additional hurdles for justice.

CILEX emphasises the significance of scrutinising digital evidence amid rapid advancements in technology, particularly artificial intelligence. The institute has noted that reforms must “ensure trials are fair and convictions are safe.” However, they cautioned that requiring all computer-generated evidence to prove functionality in each case could lead to unnecessary costs and complications, particularly impacting prosecutors. This concern is magnified in light of the existing backlog within the criminal courts, exceeding 74,000 cases.

The role of experts and truthful statements is crucial, as CILEX outlines the need for judges to have “the necessary confidence” in the provided evidence to ensure it is “suitably probative.” To alleviate the strain on legal practitioners and parties involved, CILEX advocates for “suitable remuneration and support,” which could help diminish the impact of new requirements over time. They predict that once certain standards for assessing computer-generated evidence are established, adaptation by legal professionals will follow suit.

Moreover, CILEX supports a clear definition of computer-generated evidence within the Criminal Procedure Rules and suggests amending section 69 of the Police and Criminal Evidence Act 1984. However, they stipulated that just typing text on a computer, or replicating documents electronically, should not classify as computer-generated evidence.

Yanthé Richardson, President of CILEX, remarked on the vital necessity of revisions, stating, “The devastating miscarriages of justice that resulted from the use of flawed computer-generated evidence in the Post Office Horizon prosecutions, along with the significant developments in technology we have seen over the last 20 years, mean a review of this area of the law is much needed." She furthers that it is critical to ensure laws are “fit for the modern age” while balancing the associated costs and resources required for submitting digital evidence. Additionally, precautions must be in place to ensure that definitions of digital evidence remain appropriately narrow and that adequate training is provided to practitioners leading up to such changes.