EWJ FEB 59 2025 web - Flipbook - Page 35
The faulty forensic equating of ‘reliability’ with
‘admissibility’ by the ELC back in 1999 was entirely at
odds with the professional expert conclusions and recommendations of my earlier carefully researched HM
Treasury studies, as presented in my published APPEAL Report giving my account of that work. Indeed, from the early 1990s onwards, in published
journal articles, I consistently said “A trial relying on
computer evidence should start with a trial of the computer evidence” (see for example Computer Weekly,
22 December 2021 https://www.computerweekly.com
/opinion/A-trial-relying-on-computer-evidenceshould-start-with-a-trial-of-the-computer-evidence).
g=PA106&lpg=PA106&dq=Hyams+v+Docker+m
aterial+defect&source=bl&ots=F5dl8opS o & s i g = A C f U 3 U 1 d l i 5 - _ 3 y l - L J V7UvnUY_k9BJ1Q&hl=en&sa=X&ved=2ahUKEwi
3yefj-JnpAhVV5eAKHb2oDogQ6AEwAHoECAoQAQ#v=onepage&q=Hyams%20v%20Docker%20
material%20defect&f=false
https://vlex.co.uk/vid/docker-v-hyams-shemara792540901
https://stage.i-law.com/ilaw/doc/view.htm?id=146261
“If any material defects shall have been found purchaser may give notice of rejection”…
Recommendation 3) (ii). Appropriate permissions,
arrangements and procedures should now be put in
place for UK courts such that, in cases involving the
adducing of computer evidence (back in the late
1980s, a rather rare occurrence, but now an almost
ubiquitous daily phenomenon), the court should be
able to appoint a non-partisan Independent Technical Assessor, a skilled and experienced IT expert
witness (and with no obligations to nor prior conflicts or connections with any of the parties in the
case), directly advising and guiding the Judge in understanding and evaluating in regard to relevance,
weight, and the technical and ‘custom and practice’
issues arising from the adduced computer evidence.
Recommendation 5). The financial compensation
paid to those damaged by the PO Horizon massive
20-year miscarriage of justice must recognise and
reflect that it is the taxpayer who has suffered the
most damage.
It was/is the taxpayer who since the late 1990s
generally financed the Post Office Limited (earlier,
Royal Mail Group), and it is the taxpayer who continues to provide such financial support.
The financial compensation paid to those damaged
by the PO Horizon affair must therefore recognise
that:
• Part of this taxpayer financing was used to pay Fujitsu and other suppliers for the design, build, testing
and go-live delivery and maintenance of the (still operational) Horizon IT system – supposedly (but, it
transpired, actually not) in a fit-for-purpose state, free
of software material defects.
This was indeed one of my recommendations to
HMG as I presented in the Verdict and APPEAL
Studies that I carried out for HM Treasury in the late
1980s.
Recommendation 4). Enshrine in law (i) the software
material defect test protocol, and (ii) the duty of IT
developers and suppliers not to proffer delivery of
go-live software and systems before they are
demonstrably free of software material defects.
• Further funding was supplied by the taxpayer to pay
PO executives, lawyers and other consultants and contractors investigating the Horizon IT system when it
became clear to the PO that the system was not free of
software material defects but yet this seriously faulty
system was nevertheless being used, and represented,
as reliable evidence in the many legal actions being
taken by the PO against SPMs.
The software material defect test protocol is set out
in several of my published articles and papers and
has been accepted by courts as a valid discriminatory yardstick or benchmark in a wide variety of
cases in which I have been engaged as an IT expert
witness since the early 2000s:
https://www.cutter.com/article/forensic-systems-analysis-methodology-assessment-and-avoidance-it-disasters-and-disputes
• Yet further funding was supplied by the taxpayer to
pay PO executives, lawyers and other consultants in
fighting legal actions brought by SPMs against the PO,
denying faults in the system of which they were well
aware, and being professionally negligent in not fulfilling the obligations of disclosure of all relevant evidence, including the critical computer evidence from
the Horizon system.
The definition and understanding of the general legal
concept of and test for a material defect is well established in courts of law. It goes back more than fifty-five
years, to the leading High Court case Docker v Hyams
(1969) (Shemara) (No 1), Court of Appeal (Civil Division), 29 April 1969, [1969] EWCA Civ J0429-3
“… 10. … Now that is the nub of the whole matter. Does
clause 5 provide for defects that have a real existence or does
it provide also for defects the existence of which resides only in
the eye of the purchaser or his surveyor? …”.
https://vlex.co.uk/vid/docker-v-hyams-shemara792540901
And see for example:
• Fresh funding has been provided by the taxpayer to
pay Fujitsu to maintain the end-of-life Horizon system until 2026 and beyond, since its replacement system is still under development and its delivery to the
PO is now substantially delayed.
• The UK government has designated and authorised
in legislation that it is taxpayers who will provide the
further funding of the £ billions compensation to
be paid to the SPMs and others damaged by the
Horizon affair.
• In summary, it was UK taxpayers who paid for
the creation and operation of the defective Horizon
https://books.google.fr/books?id=5CtEAwAAQBAJ&p
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