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R v Harper, R v Minors
Court of Appeal (Criminal Division) 14 December 1995

Computer printouts had been produced in evidence at the trial, but it was clear that neither prosecuting counsel, not defending counsel, nor the judge had appreciated the true application of the Police and Criminal Evidence Act 1984 sections 68, 69.

s68 deals with the way in which documentary records are to be admitted as evidence. The background of the sections is in the law of hearsay. A document which is produced as evidence of the truth of its contents cannot itself be cross-examined. A defendant is deined the possibility of testing it. They are hearsay. The tradition has always been that in law, hearsay evidence is not to be admitted or relied upon save with great care. Nevertheless many many records are assumed to be worth yof being actied upon, and s 68 was the culmination, in criminal law of attempts to regularise the ways in which documentary evidence can be admitted. It should be noted that s 68 followed closely a section of the Civil Evidence Act 1965 which first extended the admission of hearsay. Under that section, it had already been decided that computer records were documents for this purpose, and could be admited under that Act. S69 deals specifically with the circumstances applying to the admission of computer records in evidence. It is entirely negative in character. It suggests that records shall not be admitted unless they complied with the section.

In these two cases, the prosecution had relied upon evidence contained in computer records. That evidence had been supported by statements which demonstrated the compliance of the records and computer system with section 69. No reference was made to section 68, and no attempt made to justify the admission of the evidence under that section. The prosecutor, defence counsel and the judge (in a practice which was not then uncommon) had each assumed that section 69 operated as a self contained code, and that that was the only hurdle to be jumped to make the computer records admissible.

In fact, as the judge made clear, the computer based evidence in this case was also hearsay evidence, and required to be supported by evidence of compliance with s68. Section 68 sets out standards to be achieved before hearsay documentary evidence could be admitted, and section 69 goes on to set additional requirements to be met for hearsay computer records.

It should be noted that not all compter evidence is hearsay evidence. Evidence can be given as to the state of the computer itself. In this case section 69 can stand on its own.

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