3.16 The characterization of evidence as real evidence or as hearsay becomes more complicated with evidence in digital form, especially when some computational processing is made. In R v Pettigrew1 the Court of Appeal held that the print-out from a computer operated by an employee of the Bank of England was a hearsay statement.
The operator fed bundles of bank notes with consecutive serial numbers into the machine, and the machine automatically rejected any notes in the bundle that were defective. The machine also recorded the first and last serial numbers of each bundle of 100 notes. (As the operator fed the bundles into the machine, he also noted the first serial numbers in the bundle on a card.) It is the print-out from this machine that
was sought to be admitted in evidence. The purpose of adducing the evidence was to permit the prosecution to trace the issuance of the notes, and to link bank notes found in the possession of Pettigrew to a particular bundle of notes that had been stolen in a burglary. Counsel for the prosecution argued that the print-out was admissible under the provisions of the Criminal Evidence Act 1965 as a business record.2 However, s 1(1)(a) required that for such a record to be admissible as evidence of the truth of any matter dealt with in the record, the information would have to be supplied by a person who had, or may reasonably be supposed to have, personal knowledge of the matters.
The members of the Court of Appeal reached the conclusion that the operator did not have personal knowledge of the numbers of the notes that were rejected, because the machine automatically compiled the list.
1 (1980) 71 Cr App R 39; applied in R v Wiles [1982] Crim LR 669.
2 The Criminal Evidence Act 1965 was repealed by the Police and Criminal Evidence Act 1984 sch 7 pt III.
3.17 While this was an accurate application of the hearsay rule, the analysis omitted any consideration that the print-out might be considered real evidence.1 Professor Smith noted that ‘the operator had personal knowledge of the first number of each bundle which he fed into the machine because he recorded that number on a card’,2 and suggested that because the operator had knowledge of the number at a given point in time, it was not material that he forgot it. Once the first number could be established, it could then be inferred that the new notes bore consecutive serial numbers.3 Professor Smith considered that this is not hearsay but direct evidence, because there was an absence of human intervention.4 On the other hand, Professor Tapper took the view that the print-out was partly hearsay and partly non-hearsay – the first number is the hearsay and the last number and the numbers of the notes that were rejected were not hearsay because it was the output of the device.5
1 Colin Tapper, Computer Law (4th edn, Longman 1989) 375; print-outs were admitted under the provisions of s 1(1) of the Criminal Evidence Act 1965 in R v Ewing [1983] QB 1039, [1983] 2 All ER 645, [1983] 3 WLR 1 (CA), although Seng and Chakravarthi (n 1, 3.14) 90, point out that ‘the electronic records are the manifestation of the transaction’.
2 J C Smith, ‘The admissibility of statements by computer’ [1981] Crim LR 387, 388.
3 R v Pettigrew (1980) 71 Cr App R 39, 42. In effect, Professor Smith’s point was an argument pursued by counsel for the Crown.
4 Smith (n 2) 387 [389–90].
5 Colin Tapper, ‘Reform of the law of evidence in relation to the output from computers’ (1995) 3 Intl J L & Info Tech 87.
3.18 Professor Seng considered that the views of Professors Smith and Tapper were both plausible: ‘The difference lies in whether the operator fed the first number into the machine, and whether the machine processed this number.’1 Seng continued:
… the different views espoused by Professors Tapper and Smith can be resolved as follows: was the machine operating as a data storage device in relation to the first number, or a data processing device? Some form of hybrid function may also be possible, eg, the operator inputs the first number, which the machine records and then verifies against its own reading of the first number. If the machine behaved in this way, perhaps Professor Smith’s view is perhaps more accurate.
This is all a question of the degree and extent of human intervention.2 1 Daniel K B Seng, ‘Computer output as evidence’ [1997] Sing JLS 139.
2 Seng, ‘Computer output as evidence’ 140.
3.19 As computers are designed to undertake a wide range of tasks, this means that the evidence available as an output of a computer is equally as varied. A review of the cases shows that whether electronic evidence is real evidence or hearsay turns on characterizing the evidence as being due either to a device’s processing functions or to its storage functions.
3.20 In Wood (Stanley William),1 the computer was considered as a tool, and the print-out was an item of real evidence. The basis of admitting a print-out of an output as an item of real evidence was explained by Professor Tapper:
Evidence derived from a computer constitutes real evidence when it is used circumstantially rather than testimonially, that is to say that the fact that it takes one form rather than another is what makes it relevant, rather than the truth of some assertion which it contains.2
1 (1982) 76 Cr App R 23. See also the earlier case of R v McCarthy (Colin Paul), R v Warren (Mark Stephen), R v Lloyd (Leigh Cedric), R v Warren (Robert John) [1998] RTR 374 (CA).
2 Tapper, ‘Reform of the law of evidence in relation to the output from computers’ 373.
3.21 The same distinction was drawn by Professor Smith as regards the computer print-out in R v Ewing1 between its use as evidence to prove that a thing was done (money had been credited to a bank account), and evidence that something was recorded as being done (the bank clerk records a payment, as opposed to creating the credit).2
1 R v Ewing [1983] QB 1039, [1983] 2 All ER 645, [1983] 3 WLR 1 (CA).
2 [1983] Crim LR 472 (CA), 473.
3.22 The admissibility of more complex electronic evidence is illustrated in the case about the breath alcohol print-out from a portable measuring device, the Intoximeter 3000. In Castle v Cross,1 it was determined that the print-out is an item of real evidence and not hearsay.2 The judge compared the device to a speedometer, a calculator, or a sophisticated tool. In this instance, the breath alcohol value in the print-out comprised information that was produced by the Intoximeter, because the data had not passed through a human mind. On the other hand, Kennedy J also remarked that ‘where a computer is used in respect of its memory function, it is possible to envisage where it might fall foul of the rule against hearsay.’3
1 [1984] 1 WLR 1372 (DC), 1380.
2 The members of the Court of Appeal in Northern Ireland followed this line, admitting a copy of a print-out as being real evidence in Public Prosecution Service v Duddy [2008] NCIA 18, [2009] NI 19.
3 [1984] 1 WLR 1372 (DC), 1380.
3.23 In R v Spiby (John Eric),1 Taylor LJ held that there was a distinction between a print-out as real evidence and as hearsay. Professor Smith2 noted the difference between the content of the print-out as a mere recording of a fact, such as when data are processed by a computer without any human input of any description,3 and the content of the print-out as being processed in some way by a human being. The print- out was generated by a computerized machine called a ‘Norex’, which monitored the telephone calls of hotel guests in order to work out how much to charge for the use of the telephone. It was held to be real evidence.
1 (1990) 91 Cr App R 186, 192, [1991] Crim LR 199 (CA).
2 Smith, ‘The admissibility of statements by computer’ 387.
3 Although no computer works on this basis – the code is written in the main by human beings, and the code comprises the instructions to the computer, upon which basis the computer undertakes activities, and the computer undertakes actions based on the instructions written by human beings.
3.24 In R v Robson, Mitchell and Richards,1 a print-out of telephone calls made on a mobile telephone was adduced as evidence of the calls made and received in association with the number. The defence’s challenge that the evidence was documentary hearsay failed. Orde J held that ‘where a machine observes a fact and records it, that record states a fact. It is evidence of what the machine recorded and this was printed out … The record was not the fact, but evidence of the fact.’2
1 [1991] Crim LR 362.
2 [1991] Crim LR 362, 363; see also McDonald v R [2011] EWCA Crim 2933 where a print-out of telephone calls was admitted in the absence of the electronic records that no longer existed. Records of calls made by a mobile telephone were accepted as real evidence by the Court of Criminal Appeal of the Republic of Ireland in People v Colm Murphy [2005] 2 IR 125 (CCA) and in People v Brian Meehan [2006] 3 IR 468 (CCA).
3.25 In the business context, two popular uses of computers are the formation of records, and the recording of the credits and debits of an account. Where it is the latter, the records of computer payment transactions are considered real evidence, as their Lordships made clear in R v Governor of Brixton Prison, ex p Levin.1 In this appeal against extradition, it was alleged that Levin used a computer terminal in St Petersburg to gain unauthorized access to a Citibank terminal in Parsipanny, New Jersey to make 40 fraudulent transfers of funds from the accounts of clients of the bank to accounts which he or his associates controlled. Print-outs of screen displays of the historical records of computer payment transactions were adduced, and a witness gave evidence as to how the records were created. Lord Hoffmann took the opportunity to make clear the difference between a hearsay statement and evidence of a record of a transaction:
The print-outs are tendered to prove that such transfers took place. They record the transfers themselves, created by the interaction between whoever purported to request the transfers and the computer program in Parsipanny. The evidential status of the print-outs is no different from that of a photocopy of a forged cheque.2
1 [1997] AC 741, [1997] 3 All ER 289, [1997] 3 WLR 117 (HL).
2 [1997] AC 741 (HL), 746.