“Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly

This is first in a series of posts on the Post Office Horizon prosecutions scandal

The Post Office prosecutions scandal is the United Kingdom’s greatest mass miscarriage of justice of our times.

The scandal, however, is also difficult to write about.

Partly this is because many of the personal and systemic failures in the scandal are so maddening that any attempt at objective explanation and detached commentary can quickly become a rant.

And it is partly because the matter is so complex that very few will have mastery of all the legal and other documents and evidence. For example, the key 2019 judgment of Mr Justice Fraser – a judgment which also happens to be one of the greatest forensic exercises undertaken by any modern judge – is over a thousand paragraphs long, even without its appendices.

Nonetheless, there have been some outstanding accounts and analyses of this sorry situation. In particular, the journalist Nick Wallis has produced a book which should be read widely on the mess. There is also now a statutory inquiry which is seeking to get to the bottom of what happened, and why it happened, and how it should not happen again.

The focus of many of the accounts and much of the commentary has, rightly, been on the numerous personal and systemic failures – especially those of the Post Office management and their lawyers, and those of the software provider Fujitsu.

Those personal and systemic failures are central to what happened: none of the miscarriages of justice would have occurred without decisions by individuals (and groups of individuals) which could and should have been made differently.

And some of those decisions are such that the individuals involved should themselves be prosecuted.

But this post – and the posts which will follow this, as part of a series – is on another failure which was part of the mix.

This is the failure of the law itself and of the procedures of the courts.

And if anything, this failure of the law itself and of the procedures of the courts makes the individual decision-makers more culpable – for they knew (or should have known) how harsh the applicable law and procedure would be on the defendants, but the defendants would be prosecuted anyway.

Nothing in an account and explanation of the applicable law and procedure should be taken to limit the culpability of the Post Office management and their lawyers, and of those at the software provider Fujitsu.

In this first post let us start with what lawyers called a “presumption”.

The classic statement of this presumption is as follows:

“In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time”.

Here “mechanical instruments” include computers.

So, in other words, computers are presumed to be operating correctly, unless there is evidence to the contrary.

As a “presumption” this does not mean that the court will take this view each and every time, regardless of circumstance.

It is instead a starting-point which can be rebutted.

It is what the court will take to be the state of affairs, unless it is satisfied by evidence that it is not the state of affairs.

There is nothing inherently wrong about a court using presumptions: indeed, without presumptions, the courts could not properly operate.

Presumptions keep almost all legal cases manageable. For example, a contract will be presumed not to be a fraudulent instrument, unless it is shown to be a fake; or a defendant may be presumed not to be insane, unless shown to be insane; and so on.

Presumptions tell us what will be taken to be the state of affairs – and which party has the onus of showing whether that state of affairs is not correct.

The problems with any presumption are in what it presumes, and in what is needed to rebut it.

If the presumption is unrealistic in and of itself, or if rebuttal is unrealistic, then the presumption converts from being something that assists the course of justice to something that causes miscarriages of justice.

The presumption that computers are presumed to be operating correctly, unless there is evidence to the contrary is what lawyers call “a presumption of evidence”.

This means that a court can be satisfied that a relevant fact can be established just by computer records, unless there is evidence that the computer is not working properly.

And so when the computer record shows, for instance, a financial shortfall by postmaster or postmistress, the court will accept that as evidence of an actual shortfall – unless the defendant can show that the computer was not operating correctly.

In short, when the computer record is the essence of a prosecution case: computer says guilty.

This evidential presumption has not always been part of English law.

In 1984 a law was passed which pointed this presumption in the opposite direction.

Section 69 of the Police and Criminal Evidence Act 1984 provided:

This provision pointed the presumption in the other direction: it was for the prosecution to show that the computer was operating correctly, and not for the defendant to show that computer was not operating correctly.

This section 69 replaced the old common law position where, as stated above, in the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time.

Had section 69 still been part of the law when the Post Office brought its prosecutions of post-masters and post-mistresses then the course of those cases may well have been different.

Section 69, however, was repealed in 1999:

The effect of this repeal was that the old common law presumption returned, meaning that is was again for the defendant to show that a computer was not operating correctly, rather than for the prosecutor to show that the computer was operating correctly.

How this repeal came about, and whether the reasons for that repeal were sound, will be the subject of the next post in this series.

Sources

Considerable assistance for this series of posts has come from the following articles:

The Law Commission presumption concerning the dependability of computer evidence (2020)

Recommendations for the probity of computer evidence (2021)

The legal rule that computers are presumed to be operating correctly – unforeseen and unjust consequences (2022)

COMING UP

I have been working on two longer posts, which should be up in the next few days.

One is on the Post Office miscarriage of justice: in particular, the legal rule that computers are presumed to be operating correctly.

The other is on the case of Roberts v Hopwood, where it would seem the House of Lords held it was unlawful for a council to pay its workers equally.

Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency

9th September 2023

Over at Prospect magazine I have written an article headlined Whatever happened to ‘the best-governed city in the world’?.

Please do click and read it.

The rest of this post below provides some footnotes to the article and further thoughts about the subject.

The title of the article, of course, derives in part from the Alan Moore comic.

The other part of the title, however, is derived from one of the various quotations and sayings that you come across if you happen to come from or live in Birmingham. Others are “city of a thousand trades” and “more canals than Venice”.

But “the best-governed city in the world” seemed a good starting-point for this piece.

I knew it was from an American journalist about late Victorian Birmingham, but off-the-top-of-my-head I did not know more than that.

So I thought it may be interesting to track down the original quotation: any further information and context may at least add colour to a piece about local government finance and public procurement, which are not easy things to write about in an accessible way.

Pretty soon I got a year for the article which had the quotation – 1890 – the name of the journalist – Julian Ralph – and the name of the magazine – Harper’s.

Finding it was Harper’s magazine was amusing for this is the glossy magazine still published today:

And indeed the 1890 article about Birmingham municipal glory is still available on Harper’s website, but only to subscribers:

I am not, however, a subscriber to Harper’s – and it seemed disproportionate to take out a subscription just to obtain the piece, as I suspected there would not be many other articles about Birmingham.

So I wondered if the article was available elsewhere.

(The issue of copyright then crossed my mind, but it seemed to me that an 1890 article by a writer who died in 1903 was likely to be in the public domain.)

And eventually – Bingo! – I found an online copy of the publication:

And there on the contents page was the article and it actually had the quote as its title:

(Isn’t the Birmingham – see “Best-Governed City,” etc a lovely detail.)

For some reason I expected it to be a short piece, but the actual article was some twelve pages long with double columns.

So I started reading:

And on the last page of the article, and in the last paragraph, was this discussion of debt and the treatment of workers (which you should read so as to make sense of the rest of this post):

Any researcher will tell you of those moments when they are visited by the goddess Serendipity.

Not only had I found some colour for my Prospect piece, I had actually found a detailed point of comparison and contrast for a piece about Birmingham’s current predicament.

And, significantly, the 1890 article about “the best-governed city in the world” averred that the city council prowess was not because it avoided debt – indeed, the city council embraced immense debt, at levels almost unimaginable at current prices.

It was about how those Victorian councillors managed and resourced that debt, as serious people of business engaged in grand projects.

More of the Prospect piece then clicked in to place.

Switching to the here-and-now, a close reading of the “section 114 notice”, the legislation, the relevant legal cases (for example this Supreme Court decision) and the detailed reportage at the Register and elsewhere, meant that various knee-jerk things to blame dissolved.

Labour! Conservative! – well, the key employment claim was commenced when the council was under a Conservative-led coalition, and then a Labour majority. And IT project disasters care little for party affiliation.

Resources! tax! – the IT project disaster looks as if it would have also swallowed double the budget. More public money would have just gone straight through to the contractors and consultants.

(Money In, Money Out is as much a feature of bad IT procurement as Garbage in, Garbage Out.)

The problem with both the matters that have brought down Birmingham is governance.

The employment case was litigated and litigated, but the ongoing exposure appears not to have been properly managed. And sometimes litigants lose.

The IT procurement ended up as an exercise in constant changes to the software to match working practices, rather than the reverse. And any public sector procurement of bespoke developed software, as opposed to commercial-off-the-shelf software, will always tend to go badly.

The problem was glaring: neither exercise in managing risk and exposure was sensibly managed.

Compare and contrast this with the various endeavours mentioned in the 1890 article: the acquisition of gas and water undertakings, and the improvement scheme that changed the face of a Victorian city. These were also enterprises which could have gone wrong, very wrong.

But read again that last paragraph from Julian Ralph:

You will see the seriousness in how the risks and exposures are managed.

Of course, the Victorian councillors were deft self-publicists – and the leading Birmingham politician of the age, Joseph Chamberlain, can only be matched by Benjamin Disraeli in how his public image was manufactured and exploited.

Joseph Chamberlain even oversaw a memorial put up to himself, while he was still a relatively young politician and businessman.

And the 1890 article was the glossy magazine puff-piece of its time.

But.

Even realising the talent for rampant self-publicity of the Victorian politicians, the acquisition of the gas and water undertakings, and the slum clearances redevelopment, were considerable achievements for what was a growing and unfashionable urban sprawl.

(Indeed, until the year before the 1890 article, Birmingham was not even technically a city – the charter dates only from 1889.)

Whatever the (sometimes understated) faults of the municipal corporations of the time, local government was taken seriously – by voters, by the councillors, by the polity generally. Corporations had great powers, and they often used those powers sensibly, if ambitiously.

A close look at current day problems of Birmingham city council also points to it not really being just about Birmingham at all.

Unequal pay will have been a problem for many councils, and poor IT procurement does not only have a Brummie accent.

The predicament of Birmingham is that two major exposures came together at once.

(Though, as the city has long been a centre for transport routes, from the canals to Spaghetti Junction, being the venue for such a confluence does seem apt.)

Many councils are probably a few steps away from a section 114 notice – under all political parties and none. Birmingham, which we are often told is the largest local authority in Europe, is just a striking illustration of a wider problem.

In part, the problems is about resources and ideology – and under-resourced councils and ideological commitments will often make things worse.

But section 114 notices – the emergency brake of local government finance – are also perhaps a function of poor management over time.

The overall problem is perhaps a lack of seriousness: in how we as a polity now treat local government, in how central government and parliament treats local government, and in how councils themselves manage risk and exposure.

Finally, a shout-out to Prospect to being able to use this glorious 1886 depiction of Birmingham as the picture for the piece – complete with the Chamberlain monument in the foreground:

This print was up on the wall of an office in which I once worked as a temp and staring it probably was the start of my fascination with the (actual) history of my own city.

And if you look carefully at this 1886 print, you will see the dirty industrial smoke is blowing away from the nice civic architecture. As said above: the Victorians were deft self-publicists.

But if they took themselves too seriously, they also took local government seriously. And the latter is the lesson they give to us today.

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One year on from one thing, sixteen months on from another thing…

8th September 2023

On this anniversary of Elizabeth II’s death, we are still in the legislative session commenced with the Queen’s Speech of May 2022 – one monarch and two prime ministers (and several cabinet ministers) ago.

This, by itself, illustrates the drift of the current government. Neither Truss nor Sunak when they commenced their premierships signalled a new legislative programme. Instead they carried on with what was, in any case, primarily a gimmicky pick-and-mix miscellany of poorly conceived legislative proposals.

And so we are are still, in one sense, in the age of Johnson. And he is now not even in parliament, let alone the head of a government pushing through his last legislative package.

The knock-on effect of this is, as my Substack has previously averred, that the government is running out of time before the next election to pass legislation – especially anything fundamental or controversial. Many will think this a good thing, but it is not the sign of a government with direction or drive.

We are one year on from one thing, sixteen months on from another thing, and still perhaps a year away from that one thing, a general election, that can bring about any meaningful change.

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What is a section 114 Notice?

7th September 2023

Birmingham has more canals then Venice and more hills than Rome – you will be told – and it has the largest local authority in Europe and it is the only city in the United Kingdom, other than London, with a population of over a million.

And the city council now also has a section 114 notice – you can click here to read it.

The notice is under section 114(3) of the Local Government Finance Act 1988 (coincidentally the legislation that introduced the poll tax).

The provision is simple:

“The chief finance officer of a relevant authority shall make a report under this section if it appears to him that the expenditure of the authority incurred (including expenditure it proposes to incur) in a financial year is likely to exceed the resources (including sums borrowed) available to it to meet that expenditure.”

The report is worth reading in full as a snapshot of a council in trouble and as an account of how it got into that trouble.

I am a writing a longer piece about this, but I thought this would be a useful post.

Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism

24th August 2023

One conceit of many liberal constitutionalists is that they have a monopoly on constitutionalism: that is the notion that constitutional rights and structures are fundamental to political thought and action.

An indication of this conceit is the immediate – indeed automatic – response of British liberals to certain political mishaps and transgressions: this shows the need for a written constitution.

This is said, with force and sincerity, regardless of the brute fact that written (that is, codified) constitutions can be very illiberal things indeed.

A codified constitution can entrench rather than limit executive power, and it can limit rather than entrench the ability of other organs of the state to check and balance executive power.

From a liberal perspective, the true test of a written constitution for the United Kingdom is whether it would be more liberal than our current uncodified constitutional arrangements.

There is no reason to believe it would be, especially if the government of the day – with its army of ambitious officials and clever legal advisers – has anything to do with its drafting and implementation.

Our current constitutional arrangements have obliged the executive to use legislation for the Article 50 notification and prohibited the government from using a prorogation for wrongful purposes; and our current constitutional arrangements also have led to two prime ministers losing power, notwithstanding the large majority of the incoming government in 2019.

Against these highlights, however, is the steady push of the executive to gain more and more discretionary power, especially in respect of interfering with the rights of individuals. So the current arrangements should not an excuse of complacency, for our constitution has many illiberal features too.

But the way forward to making our constitution more liberal is not to assume that illiberals do not care about constitutions; it is to realise and accept that they too care about constitutional powers, but not in the same way as liberals.

In a more vivid form, this can be seen in the United States where the Trumpites and others frame their objections to their government in terms of their constitutional rights, especially to bear arms and free expression, and states’ rights.

Even the events of 6 January were based on an elaborate ruse of gaming the constitutional role of Vice President (as president of the senate) and exploiting that role’s responsibilities in respect of electoral college votes.

This may not be constitutionalism which is to your liberal tastes – and indeed many conservative constitutionalists were opposed to this ploy.

But it is still a form of constitutionalism – in that certain constitutional provisions were being (mis)used to legitimise and achieve certain political ends.

What Trump and his conspirators wanted to do was to keep power by (mis)using constitutional provisions.

And, of course, he would not have been the first authoritarian populist to seize and retain power through constitutional arrangements, rather than in spite of them.

It is prudent in public matters to try to understand political opponents on their own terms, rather than to caricature them and their motives.

Liberal constitutionalists need to realise that their opponents also care about constitutional arrangements and constitutional legitimacy, but do so in a very different way and within a very different narrative.

The battle is not about constitutionalism against anti-constitutionalism.

It is between two contrasting and irreconcilable views of constitutions and what can be done with them.

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Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences

(Source)

The court system is inherently about performance: about justice being seen to be done.

And the legal system, more generally, is inherently about coercion: about people being forced to do things they otherwise would not do.

So taking these two things together, performative justice and coercion, both of which are deeply fixed in our culture, it is difficult for many to understand why a convicted defendant cannot simply be coerced to attend a courtroom to hear the sentencing remarks of the judge.

The many have a point: it does seem an odd gap in the practice of criminal law, a lacuna in the world of courts and coercive force.

But.

There are genuine practical problems about having this particular form of coercion.

What happens if the defendant refuses to perform their allotted role and disrupts the court? Ordering back to their cells rather defeats the point of obliging them to be present.

And how do you meaningfully punish someone for non-compliance when they already face a life sentence?

There are also important points about placing at risk those court workers who would be expected to enforce the requirement against an unwilling defendant.

Like many things in criminal justice, and in the law generally, there are not easy answers to what seem easy questions: no deft solution to those who clamour that something must be done.

There is, however, perhaps another way of thinking about this.

And this is to focus on the sentence of the court being the actual punishment.

That sentence may include incarceration and other things.

But the sentence is the thing.

It is the sentence which provides (or is supposed to provide) the output of justice – the sanction which the court holds to be the proportionate and, well, just response to the offence that has been found to have been committed.

Anything in addition to the sentence, even things which seem must be done, is separate from the sentence.

We should be wary about adding performative elements in addition to the sentence handed down by the court – especially elements intended to show further retribution.

Of course, part of a criminal sentence often serves the purpose of retribution.

But even in the most extreme cases, the purpose of retribution has to be balanced by other elements by a court.

The further we go from the sentence being the punishment, because of a clamour for there to be even more dramatic performative elements, the less the sentence itself can be regarded as the product of the justice system.

Perhaps attendance orders for certain convicted defendants can be built into the court process, or even be made part formally of the sentence.

After all, as said above, there is already plenty of performative and coercive elements in criminal justice system. One more will not make that much difference.

But until such orders are properly integrated into the process, the concern should be that such elements are not made substitutes and supplements for the actual sentence.

The sentence is the thing, and it should always be the thing.

And even when the scales of justice are lopsided with the weight of the most awful of crimes, they nonetheless remain scales.

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Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process

15th August 2023

There is an old Hebrew proverb which can be roughly translated as:

What is the difference between a wise person and a clever person?

A clever person can get themselves out of situations a wise person would not have got into.

There are many points of similarity (as well as of contrast) between Boris Johnson and Donald Trump.

One common feature is their manoeuvrability.

They can perhaps be seen to get themselves out of situations which more prudent politicians would not have got into.

The impression conveyed is a constant short-term living-on-ones-wits, with a deft dodge here and will-to-power there, which would exhaust most other mortals.

But.

Each improvisation comes with a potential cost, for what deals well with one situation may not be helpful in another situation.

And this is the difference between tactics and strategy.

To put this in more concrete terms: Johnson and his lawyers appear to have hit on a good defence to possible criminal liability over the Downing Street parties.

A previous blogpost sets out how useful this line – about the need to show leadership in a work situation – was in dealing with the police and any potential fines or prosecution.

But that defence came with costs.

One cost was that it provided no defence to his own birthday party: and so that was the one for which he was fined.

And another cost was that it offered no relief in respect of the House of Commons investigation: what was a good defence in one context had no traction in another.

Johnson’s attempts to “lawyer-up” for the committee fell flat, his legalistic and supposedly “devastating” submissions got him nowhere – nowhere, that is, other than outside of the House of Commons.

His tactics worked regarding the potential criminal liability, but his strategic approach to holding power was so inept that he went from being an incoming Prime Minister with a sizeable majority to not even being a member of parliament in less than a single parliamentary term.

A similar thing can perhaps be seen now in the United States.

Trump somehow headed off not one but two impeachment exercises: he may have been impeached twice, but he was not convicted for either.

The latter impeachment was, of course, for the events of 6 January.

And so he avoided the punishment set out in the constitution for political misconduct.

But where the impeachments have failed, it appears that indictments have taken up the political slack.

It is maybe difficult to imagine that any of the current indictments against Trump – even the document retention ones – would now exist had Trump been convicted on impeachment.

(Logically, of course, the events of 6 January would have been different had the earlier impeachment ended with a conviction.)

Had Trump been convicted on impeachment – even if he had then received a Ford-Nixon type pardon – and thereby formally dismissed from office and unable to return, then it is possible that it would have seen that he had been punished enough.

An exercise of political misconduct – his role in the events of 6 January – would have then been dealt through the constitutional mechanism of impeachment – and so would have had a political solution.

Instead that political misconduct has been converted into criminal charges.

This is not to say that the criminal charges are not sound and evidenced – some of the cases look very strong and Trump’s position looks correspondingly very weak. Trump is in serious legal jeopardy.

The point is that these indictments (with the possible exception of the document retention charges) are really doing the job that should have been with the second impeachment, had Trump and his Senate allies not manoeuvred for an acquittal.

That tactical success, however, offers no defence to the criminal charges he now faces.

And instead of disgrace and permanent removal from office, he now faces criminal liability and even prison time.

The Georgia charges look especially bad for him, as there seems no pardon would be available – either from a president or the governor of the state.

In essence: it would seem that the impeachment process failed in the very circumstances such a political and constitutional remedy should have succeeded.

And, if you will pardon the pun, that is quite an indictment of the US constitution.

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A note of caution for those clapping and cheering at the latest indictment of Donald Trump

8th August 2023

(Picture credit.)

The former president of the United States is facing serious legal trouble, with a serious criminal indictment which takes seriously his role in the 6 January insurrection, and – what is more – he also faces a serious judge taking her job seriously.

No matter how many times one types “serious” it is hard to overemphasise how serious this is for Trump and, by extension, for the United States generally and for the liberal constitutionalist notion that nobody, not even Donald Trump, is above the law.

But.

Taking this seriously also should also mean that those looking on should not give way to elation and celebration.

And this is because, as with all contested litigation, there is the possibility that this case can be lost as well as won.

It is too early to be clapping and cheering.

Imagine the following scenario: the prosecution throw everything they can at Trump. Each charge is evidenced and each witness comes up to proof.

Imagine that the case against Trump could not be framed better and could not be put before the court better.

Imagine a dream prosecution, one where everything goes right.

Imagine all that and then imagine, for this is litigation and all contested litigation is ultimately uncertain, that Trump is found not guilty.

This is not actually a fanciful point: the laws being relied upon by the prosecution are not commonly prosecuted and there is doubt as to the reach of those laws.

And Trump will be fighting for his political life – and whichever lawyers he manages to employ the duration of the trial will also be seeking the best possible presentation of the defense.

There is a non-trivial possibility that Trump may be found not guilty.

What this would mean – or at least what Trump and his supporters will take it to mean – is not that Trump has escaped condemnation and conviction.

It would instead be taken to mean complete and absolute vindication of Trump both in respect of the incidents of 6 January and of his framing of the prosecution as a “witch trial”.

The consequences of such a vindication will be profound and lasting.

Of course, this possibility does not mean that the prosecution should not go ahead.

Nothing in this post should be taken to mean that the prosecution should be aborted.

The point of this post is not about prosecution practice and discretion: indeed, as far as one can tell, the prosecution is doing a good, impressive job.

The point of this post is to counter the jubilation at the indictment.

This is high-stakes litigation, in a case which may (as they say) make law.

Perhaps the prosecution wins and, after exhausting all and any appeals, Trump is held to be criminally liable for his role. If so, those opposed to Trump can then clap and cheer.

But we are not yet near that outcome, and the implications of the prosecution not succeeding need to be taken seriously too.

A great deal rides on this case, and the outcome is not certain.

Brace, brace.

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