This is my last comment on the presumption that computers are ‘reliable’. This presumption was reintroduced into English law by the Law Commission in 1997 without any evidence to demonstrate the truthfulness of the assertion. Judges treat the presumption as a legal presumption.
The presumption is not restricted to the jurisdiction of England and Wales. Many common law jurisdictions throughout the world include such a presumption – without defining it – in legislation. Lest the reader think this presumption is restricted to common law jurisdictions, many of the lawyers I know in what are called civil or administrative law systems assure me that although such a presumption does not exist in law, nevertheless the vast majority of judges assume that computers are reliable.
The continued relevance of the presumption has been scrutinized by the first four articles published in the 2020 issue of the Digital Evidence and Electronic Signature Law Review. A further article, published in the same journal in 2021, puts forward practical recommendations for judges when dealing with the disclosure or discovery of electronic evidence. It is sincerely to be hoped that judges will begin to treat this topic with the seriousness it deserves.
The ignorance relating to this topic is exacerbated when judges make comments about the simplicity of electronic evidence, as illustrated in Chapter 5. In this respect, the education of judges and lawyers in electronic evidence is essential, as argued in my editorial of the Digital Evidence and Electronic Signature Law Review in 2010 and in the commissioning and publication of two articles in 2013: Denise H. Wong, ‘Educating for the future: teaching evidence in the technological age’ (2013) 10 Digital Evidence and Electronic Signature Law Review 16 and Deveral Capps, ‘Fitting a quart into a pint pot: the legal curriculum and meeting the requirements of practice’ (2013) 10 Digital Evidence and Electronic Signature Law Review 23.
The failure to deal with these two issues by the legal profession has finally led me to adopt the view taken by Bertolt Brecht in the following lines from his poem ‘An die Nachgeborenen’ (To those born after), where he writes, from the translation by Tom Kuhn and David Constantine, with the assistance of Charlotte Ryland, The Collected Poems of Bertolt Brecht (Liveright Publishing Corporation, 2015):
Auch der Zorn über das Unrecht
Macht die Stimme heiser.
Anger, even at injustice
Makes your voice hoarse.
Our aim with this revised text is to provide an accurate guide to the state of the law and the technology. Although the focus is on the law of England and Wales, we recognize that a great deal of important case law and legislation in other jurisdictions is relevant to the issues discussed, and for that reason the text includes references to other jurisdictions when appropriate.
We also acknowledge that the topic remains in flux, which requires all of the authors to be constantly alert to the need to refine the content of chapters to better reflect the purpose of the text. As we have indicated previously, we are in no doubt that the text will continue to evolve.
We have encouraged our authors to take a new look at the chapters they have agreed to update, and we thank Luciana and Allison for substantially revising the chapter on authentication, Nigel, Andrew and Hein for beginning the review of the chapter on proof, and Alisdair and Jessica for updating the chapter on encryption, including the citation of the case from France and a brief discussion of the position in Belgium by way of comparison.
We concluded that the text of the chapter dealing with the characteristics of electronic evidence was better divided between the introductory chapter and the chapter on proof and, bearing in mind the increasing use of ‘artificial intelligence’ in software, we decided that the time was now right to provide an introduction to the topic.
We have introduced a new chapter dealing more fully with electronic signatures. Sadly, the vast majority of lawyers still do not understand the topic. (Stephen can teach electronic signatures to a hall of lawyers in 30 seconds.) Stephen’s book Electronic Signatures in Law was first published by LexisNexis Butterworths in 2003, followed by a second edition published by Tottel in 2007, a third edition published by Cambridge University Press in 2012, and the fourth edition published by the Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London in 2016. Sadly, Stephen has not been able to find a lawyer or legal academic willing to join him for a fifth edition with a view to taking over the entire text, so this book will no longer be published. With this in mind, we agreed it was appropriate to incorporate the relevant text on electronic signatures into this book. The text has been reduced and updated accordingly.