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15 Digital Evidence & Elec. Signature L. Rev. i (2018)

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EDITORIAL


The editors of this journal have the privilege to read
and review a number of thought-provoking articles
about electronic evidence, from all over the globe. We
now live in a world where the use of electronic
devices is ubiquitous and electronic information is
created, stored, retrieved an exchanged every day;
millions of records and documents comprise potential
evidence. Although electronic evidence has existed for
decades, it has only been in the last twenty-five years
that electronic forms of communication and
information exchange have become the norm.

This vast array of electronic evidence has led to the
legislatures and courts in many jurisdictions to create
rules applying to this new paradigm. It has caused us
to question whether such rules are adequate, when
often they have been developed based on the laws
around paper.

One such rule is the presumption that computers are
reliable. This presumption is based on the
understanding that a computer is made to function
properly and produce the result expected of it.

This presumption, developed in the mid to late 1990s,
was designed to allow evidence produced by
mechanical devices to be admitted into evidence
without the need to prove the reliability of the device.
Such a presumption makes sense, because it can save
considerable court time, and the presumption can
always be rebutted if there is evidence to the
contrary, that is, the mechanical device is not, in fact,
reliable.'

The words 'mechanical instruments' include
computers and computer-like devices, even though
computers and computer-like devices are not
mechanical instruments.

A computer is made up of a number of components:
the hard drive upon which data is stored, an operating


1 In 1997, the Law Commission formulated the common law
presumption in the law of England and Wales that 'In the absence of
evidence to the contrary, the courts will presume that mechanical
instruments were in order at the material time.' Evidence in Criminal
Proceedings: Hearsay and Related Topics, 13.13.


system and application software. It is this complex
combination of components that allow a computer to
operate, and this can be immediately distinguished
from a mechanical device with 'moving parts'. Any of
the components within a computer could fail the
'reliability' test. However it is application software

that we consider in more detail.

The implication that software code should benefit
from the assertion that it forms part of a mechanical
instrument and is therefore 'reliable', should be
challenged.

Is software code 'reliable'?

Judges often use the word 'reliable' to describe
software code in relation to the presumption.2 No
attempt has been made to explain what this means in
relation to software in any jurisdiction.

By way of example, the provisions of the Canada
Evidence Act (R.S.C., 1985, c. C-5). Section 31.1
provides as follows:

        Any person seeking to admit an electronic
        document as evidence has the burden of
        proving its authenticity by evidence capable of
        supporting a finding that the electronic
        document is that which it is purported to be.

This is not contentious. The best evidence rule
historically applied to all documents, which was
replaced by a 'system integrity' requirement. Clause
31.2(1) provides for requiring the 'proof of the
integrity of the electronic documents system by or in
which the electronic document was recorded or
stored'. However, the difficulty lies in the provisions
of 31.3(a):

        For the purposes of subsection 31.2(1), in the
        absence of evidence to the contrary, the
        integrity of an electronic documents system


2 For full details, see Chapter 6 of Stephen Mason and Daniel Seng,
editors, Electronic Evidence (4th edition, Institute of Advanced Legal
Studies for the SAS Humanities Digital Library, School of Advanced
Study, University of London, 2017), an open source publication.


This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License

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