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14 Digital Evidence & Elec. Signature L. Rev. i (2017)

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EDITORIAL


Editorial  Notices   from  Stephen Mason

I am very pleased that Dr Allison Stanfield has agreed
to become  the joint editor of the journal this year.
Allison was awarded her PhD, entitled 'The
Authentication of Electronic Evidence', in 2015 by the
Law School, Queensland University of Technology,
Australia and joined me on the chapter of
'Authentication' in the fourth edition of Electronic
Evidence.

Apologies to Aneta Petrova, senior assistant professor
at the Law Faculty, Plovdiv University, Bulgaria for
inadvertently omitting her name from the list of those
that took part in the discussion on the Convention on
Electronic Evidence last year. We have rectified the
omission by publishing a revised version.


Joint  Editorial

It is now accepted that the only certainty with respect
to technology is that it changes constantly, and is
generally improving. Perhaps the same cannot be said
for the law. In business, electronic documents are
signed and exchanged regularly and software, such as
that to enable driverless motor vehicles, is constantly
being written and implemented in practice. We as
editors, keep an eye on the way in which the law is
coping with such huge societal changes, and
consequently, we have seen a great deal of
incomprehension  and inconsistency from law makers.
It is the role of this journal to keep readers aware of
the law, and to raise questions that provoke some
jurisprudential thought on whether the laws are
adequate.

Legislators across the globe have or are in the process
of amending legislation to permit the use of motor
vehicles that are driven by software, and not the
human  driver. There are some significant problems
with entrusting one's life into the hands of software
programmers.  Admittedly every time an aircraft takes
off, flies and lands, the entire journey is controlled by
software written by human beings. This has made


flying very safe. However, the controls exerted over
the development  and quality of software destined for
use in an aircraft lends a degree of comfort to the
traveller that they are safe to fly. Not so the software
in motor vehicles. People have been killed and injured
when  software has taken over a motor vehicle and
driven the vehicles to top speed. Illustrations are set
out in chapter 6 of Electronic Evidence, 4th edition,
2017.

If motor vehicles are to be controlled by software
written by programmers, a number of issues arise in
legal terms that are critical, especially where litigation
occurs:

        (i) The presumption that computers are
        'reliable' must be revered or ameliorated.

        (ii) The process of disclosure or discovery
        must provide for the automatic disclosure of
        the software code and any other relevant
        design documents.

        (iii) The rules that permit business records to
        be automatically granted admission into legal
        proceedings without the need for
        authentication must be amended.

More  generally, investigators and lawyers must
understand that they cannot be complacent when
analysing facts leading to a possible prosecution. It is
essential that those responsible for bringing criminal
proceedings ascertain the correct position before
deciding to charge people. This did not occur in the
case of the nurses in the Princess of Wales Hospital in
Bridgend, Wales in 2015 (for which see Electronic
Evidence, 9.90 - 9.95).

One of the main reasons cited to support the
introduction of motor vehicles controlled by software
is to reduce the number of accidents. It is right that
society ought to try and reduce the number of people
killed and injured in motor vehicles, especially if
elderly people continue driving when it is not safe,
and others drive under the influence of alcohol and


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