EWJ FEB 59 2025 web - Flipbook - Page 34
https://www.solicitorsjournal.com/sjarticle/privateprosecutions-play-a-vital-role-in-our-justice-systemthe-post-office-scandal-should-not-undermine-that).
represented not only my work for HM Treasury but
also several other experts when it changed the rule on
computer evidence, repeatedly quoting “vague, armwaving, un-evidenced comments by judges who offered no insight into anything beyond their own
technical ignorance”. This ‘presumption’ law change
made the PO Horizon IT system miscarriages of
justice inevitable. (See James Christie, Computer
Weekly, 02 Nov 2023.
https://www.computerweekly.com/opinion/Law-Commission-misrepresented-experts-when-it-changedrule-on-computer-evidence).
The answer to that question is that it can only have
been the lawyers, who are always professionally responsible for conduct of any case in court, i.e. here
specifically those involved in the PO trials, who were
culpable for those astonishing repeated failures to
comply with clear legal standards and the basic professional obligations of disclosure of all relevant evidence, whether the evidence relied upon is in
documentary or digital form. This omission by the
lawyers involved in the PO trials appears to be not
only professional negligence, but also a dereliction of
their duty to uphold justice (“Solicitors must act in a
way that upholds the constitutional principle of the
rule of law, and the proper administration of justice in
a way that upholds public trust and confidence in the
solicitors' profession and in legal services provided by
authorised persons”, ‘SRA Principles’, SRA Standards
and Regulations, the Law Society, 2019
https://www.lawsociety.org.uk/topics/regulation/srastandards-and-regulations#. See Castell S (2024) ‘The
fallout from the Post Office Horizon scandal: legal professionals under fire’, Solicitors Journal 18 April 2024
https://www.solicitorsjournal.com/sjarticle/the-falloutfrom-the-post-office-horizon-scandal-legal-professionals-under-fire).
Recommendation 2. Steps must be taken to ensure
that the duty to disclose all relevant computer
evidence on which a litigant relies must always be
fulfilled.
In hundreds of appalling private prosecution and civil
litigation trials pursued against innocent SPMs, there
were no substantive or successful submissions made
by the lawyers involved that the computer evidence
on which the prosecution relied must be disclosed, for
(expert) examination, challenge, and potential
rebuttal.
The critical importance of the duty to disclose all
relevant computer evidence at trial needs to be constantly highlighted and emphasised. Academics, instructors and practice professionals involved in the
education of law students and the training of new legal
practitioners must ensure to embed in their pupils’
heads, hearts and souls the foundational principle
that, irrespective of the ‘presumption’, and/or analysis
of the reliability of the computer evidence, the duty to
disclose at trial all relevant evidence, including computer evidence, is fundamental to the pursuit of justice
and a fair hearing.
The Sir Wyn Williams PO Horizon IT Public
Inquiry
The UK government set up The Post Office Horizon
IT Inquiry (‘the Inquiry’), led by retired high court
judge Sir Wyn Williams, with over 28 years’ judicial
experience, in non-statutory form on 29th September
2020, converted to a statutory inquiry on 1st June
2021. The Inquiry finished in December 2024, with
Sir Wyn’s Report, containing his Recommendations,
expected to be available by end-2025.
In a world now utterly dependent on computer
software and systems, steps must be taken to emphasise and ensure that full disclosure of computer
evidence is supremely important in litigation and
the resolution of disputes. The technically esoteric
nature of digital evidence simply has to be faced, understood and engaged with by solicitors, barristers and
judges. This may well require the involvement and assistance of independent skilled and experienced
forensic IT experts to advise on the elusive nature and
intricate details of the technical disclosure pertaining
to the case, and then to apply their expertise to be able
to assist with examining, analysis, challenge and validation, alternatively rebuttal, of such vital computer
evidence in court. Modern British justice demands
nothing less, if only to avoid future ‘Horizons’. (See
Castell S (2024) ‘The fallout from the Post Office Horizon scandal: legal professionals under fire’, Solicitors
Journal 18 April 2024
https://www.solicitorsjournal.com/sjarticle/the-falloutfrom-the-post-office-horizon-scandal-legal-professionals-under-fire?pass=601650).
Sir Wyn is tasked with ensuring there is a public
summary of the failings which occurred with the Horizon IT system at the Post Office leading to the suspension, termination of SPMs’ contracts, prosecution
and conviction of SPMs. The Inquiry will look to establish a clear account of the implementation and failings of the system over its lifetime. It has gathered
relevant evidence, under oath, from affected persons,
previous and current SPMs, Post Office Ltd, UK Government Investment (UKGI), Fujitsu, the Department
for Business and Trade (DBT), amongst others.
What Recommendations should the Inquiry Report
contain?
From an experienced forensic IT Expert Witness
perspective, if I were writing the Inquiry Report’s
Recommendations they would include the following:
Recommendation 1). The faulty ‘legal presumption
of the reliability of computer evidence’: This should,
as a priority, be repealed. As a matter of professional
computer systems architecture fundamentals this
‘presumption’ was never scientifically correct, and
its removal is now required urgently. The ELC misEXPERT WITNESS JOURNAL
Recommendation 3) (i). A trial relying on computer
evidence should first start with a trial of the
computer evidence.
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