As evidence produced by a computer is often used in court cases, there are necessarily presumptions about the correct operation of the computer that produces it. At present, based on a 1997 paper by the Law Commission, it is assumed that a computer operated correctly unless there is explicit evidence to the contrary.
The recent Post Office trial (previously mentioned on Bentham’s Gaze) has made clear, if previous cases had not, that this assumption is flawed. After all, computers and the software they run are never perfect.
This blog post discusses a recent invited paper published in the Digital Evidence and Electronic Signature Law Review titled The Law Commission presumption concerning the dependability of computer evidence. The authors of the paper, collectively referred to as LLTT, are Peter Bernard Ladkin, Bev Littlewood, Harold Thimbleby and Martyn Thomas.
LLTT examine the basis for the presumption that a computer operated correctly unless there is explicit evidence to the contrary. They explain why the Law Commission’s belief in Colin Tapper’s statement in 1991 that “most computer error is either immediately detectable or results from error in the data entered into the machine” is flawed. Not only can computers be assumed to have bugs (including undiscovered bugs) but the occurrence of a bug may not be noticeable.
LLTT put forward three recommendations. First, a presumption that any particular computer system failure is not caused by software is not justified, even for software that has previously been shown to be very reliable. Second, evidence of previous computer failure undermines a presumption of current proper functioning. Third, the fact that a class of failures has not happened before is not a reason for assuming it cannot occur.
Continue reading The role of usability, power dynamics, and incentives in dispute resolutions around computer evidence