Cur. adv. vult.
JUDGMENT
14 December. Steyn J. read the following judgment of the court. The law of evidence must be adapted to the realities of contemporary business practice. Mainframe computers, minicomputers and microcomputers play a pervasive role in our society. Often the only record of a transaction, which nobody can be expected to remember, will be in the memory of a computer. The versatility, power and frequency of use of computers will increase. If computer output cannot relatively readily be used as evidence in criminal cases, much crime (and notably offences involving dishonesty) will in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have "bugs." Unauthorised alteration of information stored on a computer is possible. The phenomenon of a "virus" attacking computer systems is also well established. Realistically, therefore, computers must be regarded as imperfect devices. The legislature no doubt had in mind such countervailing considerations when it enacted sections 68 and 69 of the Police and Criminal Evidence Act 1984. At first glance these two sections of the Act do not appear to be of undue complexity. But in two criminal appeals, which we recently heard, it became obvious that in each case prosecuting counsel, defence counsel and the judge fundamentally misunderstood the meaning of these statutory provisions in their application to the admissibility of computer printouts. It is our impression that this misunderstanding may not be restricted to those who were involved in the two appeals before us. There is also very little authority on the interpretation of sections 68 and 69. It may therefore be helpful if we set out our understanding of the meaning of these sections, and the procedure to be adopted in applying them, not exhaustively but in broad outline, before we turn to the particular facts of the two appeals.
The relevant statutory provisions
Section 68 of the Act of 1984 provides for the admissibility of documentary records in criminal proceedings. It reads:
"(1) Subject to section 69 below, a statement in a document shall be admissible in any proceedings as evidence of any fact stated therein of which direct oral evidence would be admissible if - (a) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and (b) any condition relating to the person who supplied the information which is specified in subsection (2) below is satisfied. (2) The conditions mentioned in subsection (1)(b) above are - (a) that the person who supplied the information - (i) is dead or by reason of his bodily or mental condition unfit to attend as a witness; (ii) is outside the United Kingdom and it is not reasonably practicable to secure his attendance; or (iii) cannot reasonably be expected (having regard to the time which has elapsed since he supplied or acquired the information and to all the circumstances) to have any recollection of the matters dealt with in that information; (b) that all reasonable steps have been taken to identify the person who supplied the information but that he cannot be identified; and (c) that, the identity of the person who supplied the information being known, all reasonable steps have been taken to find him, but that he cannot be found. (3) Nothing in this section shall prejudice the admissibility of any evidence that would be admissible apart from this section."
Section 69 deals specifically with evidence from computer records in criminal proceedings. It reads:
"(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown - (a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; (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; and (c) that any relevant conditions specified in rules of court under subsection (2) below are satisfied. (2) Provision may be made by rules of court requiring that in any proceedings where it is desired to give a statement in evidence by virtue of this section such information concerning the statement as may be required by the rules shall be provided in such form and at such time as may be so required."
No rules of court have been made under section 69(2). By virtue of section 70, sections 68 and 69 must be read with Schedule 3, the provisions of which have the same force in effect as sections 68 and 69. Part I of Schedule 3 supplements section 68. Notwithstanding the importance of Part I of Schedule 3, we propose to refer to only two provisions of it, namely:
"1. Section 68(1) above applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied was acting under a duty; and applies also where the person compiling the record is himself the person by whom the information is supplied.
"6. Any reference in section 68 above or this Part of this Schedule to a person acting under a duty includes a reference to a person acting in the course of any trade, business, profession or other occupation in which he is engaged or employed or for the purposes of any paid or unpaid office held by him."
Part II supplements section 69 in important respects. We propose to refer to only two provisions of it, namely:
"8. In any proceedings where it is desired to give a statement in evidence in accordance with section 69 above, a certificate - (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters mentioned in section 69(1) above; and (d) purporting to be signed by a person occupying a responsible position in relation to the operation of the computer, shall be evidence of anything stated in it; and for the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
"9. Notwithstanding paragraph 8 above, a court may require oral evidence to be given of anything of which evidence could be given by a certificate under that paragraph."
The making of a false statement is a criminal offence: paragraph 10 of Part II of Schedule 3. Part III supplements both sections 68 and 69. Paragraph 14 of Part III reads:
"For the purpose of deciding whether or not a statement is so admissible the court may draw any reasonable inference--(a) from the circumstances in which the statement was made or otherwise came into being; or (b) from any other circumstances, including the form and contents of the document in which the statement is contained."
Paragraph 15 provides that rules of court may supplement sections 68 and 69 and Schedule 3. No such rules have been made. Turning back to the main body of the relevant part of the Act we draw attention to the fact that section 71 authorises the use in criminal proceedings of copies of documents, subject to the court's approval. Finally, section 72(2) preserves the court's power, in relation to documents within the scope of sections 68 and 69, to exclude evidence at its discretion.
In 1986 the Fraud Trials Committee Report made a number of recommendations for the relaxation of the stringent requirements of section 68 of the Act in relation to fraud trials. The observations of the Roskill Committee (as it is commonly known in deference to the fact that Lord Roskill was its chairman) were, however, of wider import, and led to the repeal of section 68 and to the substitution of a less stringent provision by the Criminal Justice Act 1988. The new provision is contained in section 24 of the Act of 1988. Notably, there is absent from the new provision a requirement that the document should have been compiled by a person "acting under a duty." The repeal of section 68 of the Act of 1984 will be effected by Schedule 16 to the Act of 1988. The provisions of section 24 of the Act of 1988 have not yet been brought into operation. While some of the observations in this judgment will be equally applicable to section 24 of the Act of 1988, we will make only minimal reference, and in obvious respects, to a statute which is not directly relevant to the appeals before us. Turning now to the requirements of sections 68 and 69 of the Act of 1984, we will state our general observations in a series of numbered paragraphs. The requirements of sections 68 and 69 of the Act of 1984
1. At the outset it must be remembered that documentary records of transactions or events are a species of hearsay, which are not admissible unless they come within the scope of a common law or statutory exception to the hearsay rule. For example, at common law certain public documents were admissible, and proved themselves. An instance of a statutory exception is provided by Schedule 6 to the Banking Act 1979. We do not propose to list other exceptions. But section 68 was designed to create a further exception to the hearsay rule, and does not render inadmissible computer evidence, which is otherwise admissible: section 68(3).
Two comments are pertinent. First, to the extent to which a computer is merely used to perform functions of calculation, no question of hearsay is involved, and the requirements of sections 68 and 69 do not apply: Reg. v. Wood (1982) 76 Cr.App.R. 23 and Sophocleous v. Ringer [1988] R.T.R. 52. It is probably right to say that such calculations do not constitute evidence in any strict sense of the word. In a jury trial this exception, if it be a true exception, is subject to the judge's overriding discretion to exclude material which in his judgment ought not to be placed before the jury. Secondly, the question arises whether computer printouts may sometimes be admissible as real or original evidence. With characteristic incisiveness Professor J. C. Smith has argued that where a computer operator, by hitting the appropriate keys, credits an account, the printout proves the thing done because it was the thing done or, at least, a copy of the thing done: see note at [1983] Crim.L.R. 472, and the same author's earlier article, "The Admissibility of Statements by Computer" [1981] Crim.L.R. 387. In such a case, it was argued, no hearsay is involved. We respectfully agree. But, although sections 68 and 69 are inapplicable, it will still be necessary in such a case in the absence of agreement on the point, to prove the provenance of the computer printout. Moreover it seems to us in practice that there will be much scope for serious argument as to whether a particular printout does amount to real evidence, and the usefulness of this exception is therefore limited. In any event, neither of these two exceptions are relevant to the two appeals before us.
2. In the courts below it was assumed by all concerned that section 69 constitutes a self-contained code governing the admissibility of computer records in criminal proceedings. Undoubtedly, that is a legislative technique which Parliament could have adopted. The question is whether Parliament did adopt it. There is some tenuous textual support for the view taken in the lower courts. Section 69(2) which created the power to make the relevant rules, refers to cases "where it is desired to give a statement in evidence by virtue of this section." Arguably, this language suggests that a computer record may be admissible solely by reason of the provisions of section 69. We are satisfied, however, that such an argument must fail. The wording of section 68 is wide enough to cover a computer printout of, for example, a building society account. Indeed in Reg. v. E [1983] Q.B. 1039 it was held that a computer printout of an appellant's bank account was admissible in evidence under section 1 of the Criminal Evidence Act 1965. The latter provision is in material respects in substantially the same terms as section 68 of the Act of 1984: the main difference being that the 1965 reform applied to records compiled by persons in the course of a private business, whereas section 68 extended this exception to the hearsay rule to records kept by anyone acting under a duty, whether in the private or public sector. Section 68 is therefore not only apt to apply to computer records, but it was enacted against the background of a decision of the Court of Appeal, on materially similar wording, holding that it is wide enough to cover computer records. The question is therefore simply whether against this background section 69 is to be regarded as a separate code exclusively governing computer records. Section 69 is, however, entirely negative in form: it lays down additional requirements for the admissibility of a computer record which has already passed the hurdle of section 68. In other words, such a document will only be admissible if it satisfies the foundation requirements of both sections 68 and 69. And, in passing we note that when section 24 of the Act of 1988 comes into operation there will be two hurdles to clear in relation to computer records, viz. the new section 24 and section 69.
3. The method of proving the foundation requirements of sections 68 and 69 requires some comment. The additional requirements of section 69 can be proved by an appropriate certificate, complying with the provisions of Part II of Schedule 3, subject to the judge's power to require oral evidence to be given. There is no such general provision in relation to section 68. There is only a restricted right to prove medical unfitness to testify by a certificate: paragraph 5 of Part I of Schedule 3. A computer printout does not prove itself. It follows therefore that the foundation requirements of section 68 cannot (except in the case of medical unfitness to testify) be proved by a certificate. The requirements of section 68 must therefore be proved by oral evidence unless admissions are made by the defence or the defence allows a statement to be read. This result severely reduces, in relation to computers, the utility of the provisions allowing the requirements of section 69 to be proved by a certificate. It is, however, the inevitable result of the way in which the relevant statutory provisions have been drafted. And in passing we note that the foundation requirements of section 24 of the Act of 1988 will also not be susceptible of proof by certificate.
4. Turning now to the requirements of section 68(1), it seems to us that the requirement which may sometimes prove troublesome in practice is the need to prove "personal knowledge" of the person who supplied the information. In relation to records produced by computer technology, both in the public and private sectors, the "information" will often have passed through the hands of a chain of employees. But it is important to bear in mind that paragraph 1 of Part I of Schedule 3 extends the application of section 68 to indirect supply of knowledge. Moreover, in a great many cases the necessary evidence could be supplied by circumstantial evidence of the usual habit or routine regarding the use of the computer. Sometimes this is referred to as the presumption of regularity. We prefer to describe it as a common sense inference, which may be drawn where appropriate. That leaves for consideration the requirements of section 68(2). In relation to computer records, it seems likely that the condition of admissibility which will most frequently be involved is:
"(a) that the person who supplied the information . . . (iii) cannot reasonably be expected (having regard to the time which has elapsed since he supplied or acquired the information or to all the circumstances) to have any recollection of the matters dealt with in that information; . . ."
While we do not propose to examine this particular requirement in detail, we draw attention to the fact that it has been held by the Court of Appeal that the criterion of reasonableness is not merely to be examined at the moment the trial opens but against the whole background of the case: Reg. v. Bray (unreported), 28 June 1988. And this provision is mirrored by a provision in section 24(4) of the Act of 1988 to which the same comment will apply.
5. The requirements of section 69 speak for themselves. The only comment we would make is that the failure of a computer, or a software programme, may occasionally result in a total failure to supply the required information, or in the supply of unintelligible or obviously wrong information. It will be a comparatively rare case where the computer supplies wrong and intelligible information, which pertinently answers the questions posed. Nevertheless, such cases could occur. In the light of these considerations trial judges, who are called upon to decide whether the foundation requirements of section 69 have been fulfilled ought perhaps to examine critically a suggestion that any prior malfunction of the computer, or software, has any relevance to the reliability of the particular computer record tendered in evidence.
6. The course adopted by the judge in one of the two appeals before us prompts us to refer to the procedure which ought to be adopted in a case where there is a disputed issue as to the admissibility of a computer printout. It is clear that in such a case a judge ought to adopt the procedure of embarking on a trial within a trial. It is the judge's function to decide whether the prosecution has established the foundation requirements of sections 68 and 69. In coming to that conclusion he ought to apply the ordinary criminal standard of proof: see Reg. v. E [1983] Q.B. 1039. He ought to bear in mind his power to exclude in his discretion prejudicial evidence which ought not to be admitted. And, in relation to computer records, which are admitted in evidence, he will no doubt often find it necessary to give a specific direction to the jury that the weight to be attached to such documentary evidence is entirely a matter for them to assess.
We now turn to the facts of the two appeals before us.
Reg. v. Minors
On 6 May 1986 a man with a passbook of the Alliance Building Society presented it at the counter of the newly merged Alliance and Leicester Building Society at Kilburn. The passbook purported to show a credit balance of £510. He wanted to withdraw £250. He was asked for means of identification but he had none. When he left the counter the cashier operated the security camera. The same man returned with means of identification and renewed his request. The cashier thought that the last four entries in the passbook were suspect because in each case the logo stamp was drawn by hand and was one which was no longer used by the building society. A check on the computer revealed that there was only about £1 in the account. The camera was operated again. The passbook was retained. But the man disappeared.
In due course the appellant, the owner of the passbook, was arrested and charged. After a trial lasting five days he was convicted by majority of 10 to 1 of offences of attempted deception and using a false instrument. He was sentenced to concurrent terms of 12 months' imprisonment suspended for two years. He now appeals with the leave of the single judge.
A bewildering number of points of criticism were advanced in the grounds of appeal. Counsel had the good sense to abandon some of the grounds of appeal. But a number of hopeless grounds were still advanced. We will deal with them quite shortly. First, attention was drawn to the fact that, when the judge quite properly discharged a juror, he said: "I am sorry that you will not be in at the kill, so to speak." From the context in which that was said no juror could possibly have inferred a bias against the appellant. In any event, the judge subsequently apologised, and corrected what was alleged to be a wrong impression which he had created. The point is without merit. Secondly, it was said that the judge failed to warn a witness not to speak to other witnesses, and in consequence she did speak to other witnesses. Counsel did not intervene to remind the judge of the usual practice. The fact is, however, that counsel fully exploited this factor in cross-examination. It was a hopeless ground of appeal. Thirdly, complaint was made of the fact that when a note was sent by the jury to the judge, the judge failed to read it to the jury. We are satisfied, however, that counsel for the prosecution and the defence, expressly or by conduct, indicated to the judge that the note should not be read to the jury. In any event, the note revealed the processes of reasoning of some of the jurors and on the authority of Reg. v. Gorman [1987] 1 W.L.R. 545 ought not to have been revealed to counsel. This point is also without merit.
Among all the bad points there was, however, a matter of substance. It related to a computer printout which on its face showed that the last four entries in the passbook were false. The judge had to rule on the admissibility of this document but he failed to conduct a trial within a trial on the issue. Mr. Abbot, an auditor in the audit investigation department of the building society, produced the computer record of the complete history of the appellant's account. The last four entries in the passbook were not recorded in the computer. Counsel argued that Mr. Abbot was not qualified to give evidence about the reliability of the computer. He had 14 years' relevant experience, and regularly worked with this particular computer. In our judgment he was properly qualified to testify as to the reliability of the computer. His evidence was, however, solely directed to the requirements of section 69. No attempt was made to satisfy the requirements of section 68. Everybody assumed that section 68 was irrelevant. Accordingly, the judge never considered whether the foundation requirements of section 68 were fulfilled. It follows that the evidence of the computer printout was wrongly admitted. It is therefore unnecessary to consider a further argument that the judge erred in ruling that such evidence could be led after the close of the prosecution case.
The question is whether the conviction is nevertheless safe and satisfactory. We have come to the firm conclusion that this is a classic case for the application of the proviso. The real issue was one of identity. The appellant faced a strong circumstantial case. In the act of attempted deception his passbook was used. That passbook had been in his possession a few days before the offence. He did not testify. There was therefore no evidence that the passbook had been stolen, and no such report had been made. Moreover, the man who perpetrated the act of attempted deception returned to the cashier on the second occasion with satisfactory means of identification bearing the name and address of the appellant. Finally, the photographs, although not conclusive by themselves, identified a man of the appearance of the appellant. On the issue of identity there was therefore an overwhelming prosecution case, and the computer printout was irrelevant to that issue. It could only be relevant to the subsidiary questions whether there was in fact only a balance of about £1 in the account, and whether the appellant knew it. It is important to bear in mind that the appellant did not testify, and that his case was conducted on the basis that he did not make the four disputed entries. On his case they were false entries. On that basis there were plainly insufficient funds in the account to accommodate the request for a withdrawal of funds. The prosecution called Mr. Abbot, from the audit investigation department, and Mr. Stevenson, the branch manager, and they testified that the page four entries were false not because of the handwriting but because each had next to it a hand drawn logo instead of an official stamp. That is obvious on an inspection of the passbook. Once the last four entries are found to be forgeries, and that is an inevitable finding of fact, it follows that there was only £1 in the account and the appellant (who tendered the passbook to the cashier) must have known that those entries were false. In our judgment, even without the computer evidence, any jury would without doubt have concluded that the unanswered prosecution case had been clearly proved. This appeal is dismissed.
Reg. v. Harper
On 20 February 1987 the appellant, who was travelling on a London Regional Transport bus, presented a Capital Card and photocard for inspection. The revenue protection official identified the number as one of a list of stolen cards. According to this official the appellant said that she got the card from Edgware Road Station and "that her work got it for her." That was the shape of the prosecution case which after a short trial resulted in the appellant's conviction by an 11:1 majority of handling stolen goods. The appellant was conditionally discharged. She now appeals with the leave of the single judge.
The real problem at the trial was to prove that the card had been stolen. The relevant sequence of events was as follows. (a) In February 1985 a batch of cards were stolen at Alexandra Palace Railway Station. (b) Appropriate entries were made in the Lost Book at Alexandra Palace Railway Station. At the time of the trial that book was missing. (c) The relevant entries were transferred to a British Rail computer at the British Rail Station at King's Cross. (d) From the latter computer the entries were transferred to a London Regional Transport computer at Waterloo. The prosecution relied on a computer printout from the latter computer. The computer printout was produced by Mrs. Alcock, a revenue protection official, who worked in offices in Baker Street. She was not a computer technologist. She said that she had no reason to doubt the reliability of the London Regional Transport computer, and she said that she regularly relied on printouts from it. The judge ruled that her evidence satisfied the requirements of section 69. In our judgment he erred: Mrs. Alcock could not from her own knowledge testify as to the reliability of the computer. In any event, no attempt had been made to satisfy the requirements of section 68. The computer printout was therefore inadmissible.
Counsel for the prosecution has asked us to apply the proviso. He emphasises that the appellant testified in her defence and that the jury must have disbelieved her. But in this case the inadmissible computer printout was a major plank in the prosecution case. It served to prove that the card was stolen, and to controvert the defence suggestion that the appellant might innocently have acquired a forged card. Without the computer evidence the judge may have stopped the case at the end of the prosecution case, or, in any event, the appellant may not have testified. The prosecution case, without the computer evidence, was by no means overwhelming. It is impossible to say that the jury would inevitably have convicted if the computer printout had been ruled inadmissible.
This appeal is allowed and the conviction is quashed.
ORDER
Appeal of Minors dismissed.
Appeal of Harper allowed.
Crown Copyright acknowledged
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