Early into my career at the Bar, in 1980, I wrote, with Richard Sizer, a special report for the British Computer Society with the less than thrilling title "Admissibility and Reliability of Computer Evidence in Civil and Criminal Cases" This report took as its starting point a decision of the Court of Appeal which rendered automatically generated computer evidence inadmissible (R v Pettigrew (1980) 71 Cr App Rep 39) and made recommendations which included the amendment of the criminal law on computer evidence.

Following further discussions, the Home Office subsequently added provisions to the Police and Criminal Evidence Act 1984 in s 69 which permitted computer evidence but subject to a certificate from a knowledgeable person who affirms that the computer was working properly at the time.As many will have heard the government proposes (See http ://www.gtnet.gov.uk/lawcomm/library/lc245/summary.htm) to abolish s 69 of PACE.

Last July in a UK Cryptography Newsgroup Dr Ross Anderson of the Cambridge Computer Laboratory commented that "Many if not most of the victories that have been won on computer matters, including notorious miscarriage-of-justice cases like R v Munden, hinged on this.

With it gone there will be very little leverage as the state will be able to interpret any convenient computer evidence more or less as it wants, and whenever anyone wishes to challenge it they will have to argue ab initio".Munden was the case where a serving police officer who reported to his bank that sums had been withdrawn from his bank account was charged and convicted of a ttempting to obtain money by deception from the bank.

The case was thrown out on appeal to the Divisional Court when the reliability of the bank computer records and the testimony of the bank's computer expert witnesses was questioned and the prosecution had to drop the charge owing to the refusal of the bank to supply any evidence to substantiate the statements it was making.Dr Anderson is correct that this proposed change in the law is one which, indeed, has very serious consequences.

But the change really must be considered in context.

Back in 1993 two academics, Mayon-White and Dyer (Mayon-White WM and Dyer B 1993 "The Legal Images Initiative: Towards a voluntary code of practice" (now available from the Image and Document Management Association c/o the Department of Information Systems.

The London School of Economics, Houghton Street, London WC2A 2AE)), published a ground breaking set of principles on good practice for the operation of systems making use of "imaging" technology.

They established the Legal Images Initiative (LII) as a consortium of organisations which sought to achieve a position where an imaged document would be treated in law as equivalent to the typed, printed or hand written document.

In their report they said that the primary objective of the LII is to create a framework which, if followed by users of electronic document management systems, will give them confidence in the security of the storage and retrieval processes and in the acceptability of such records in any court of law, should a dispute arise in which the documents stored in this way may be required as evidence".

Mayon-White and Dyer's work became the basis of a British Standard Code of Practice, now published by the British Standards Institute (DISC PD0008).

This takes as its starting point their Five Principles of Good Practice:-- Recognise all types of information;-- understand the legal issues and execute "duty of care" responsibilities;-- identify and specify business processes and procedures;-- identify enabling technologies to support business processes and procedures;-- monitor and audit procedures.Each of these principles has been expanded upon.

Thus the first process, recognition of information, is subdivided into classification, storage and evaluation.

Classification draws upon the skills of both the librarian or information scientist and those of diligent office administrators.

Storage considered the life cycle of the information following its receipt.

Evaluation requires the organisation to take appropriate steps to protect its information resource.This expanding process continues throughout the principles.

In relation to the legal issues the code requires the organisation to establish a chain of responsibility and consequently of accountability in relation to information handling within the organisation.

With the above in mind I now turn to the provisions of the Civil Evidence Act 1995 which was brought in to sweep away the antiquated computer evidence provisions of the Civil Evidence Act 1968.

The new legislation was strongly promoted by the CCTA, a key player in the LII.

Section 8 of the Civil Evidence Act 1995 says: "8(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved:-- by the production of the document; or-- whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.

(my emphasis)(2) It is immaterial for this purpose how many re moves there are between a copy and the original".Section 12 sets out the definitions: "document" means anything in which information of any description is recorded.

"Copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.As a practitioner I am not particularly concerned about the proposed abolition of s 69 of PACE.

The existence of BS 7799 "A Code of Practice for Information Security Management" along with DISC PC 0008 "A Code of Practice for Legal Admissibility of Information Stored on Electronic Document Management Systems", now presents defence lawyers with the necessary material to cross-examine corporate executives who wish to place computer generated evidence before the court.

The legal consequences of these codes of practice are interesting if an analogy is drawn.In September 1983 the Accounting Standards Committee, the Institute of Chartered Accountants of England and Wales, commissioned Mr Leonard Hoffmann QC and Mary Arden to supply them with a joint opinion of the meaning of "true and fair" with particular reference to the role of Accounting Standards.

Leonard Hoffmann, who has since become a Law Lord was at his time at the Bar considered to be one of the best and soundest lawyers around.

Mary Arden is now a Chancery High Court Judge.

In their 1983 Opinion the two barristers stated that:-- The application of the "true and fair view" involves judgment in questions of degree.

There may sometimes be room for differences of opinion over the method to adopt to give a true and fair view.

Because questions of degree are involved when a company is deciding on how much information is sufficient to make its financial statements true and fair, it may take account of cost effectiveness amongst other factors.-- It is for the court to decide whether financial statements give a true and fair view in compliance with the Act.

But the courts will look for guidance to the ordinary practice of accountants.

This is principally because the financial statements will not be true and fair unless the quality and quantity of the information they contain is sufficient to satisfy their readers' reasonable expectations.

Those expectations will have been moulded by accountants' practices.-- Statements of Standard Accounting Practice have a two-fold value to the court.

First, they constitute an important statement of professional opinion.

Secondly, because accountants are professionally obliged to comply with SSAPs, the readers of financial statements expect those statements to conform with the prescribed standards.

Departure from a SSAP without adequate explanation may therefore result in the financial statements not showing a true and fair view.-- Consequently, the courts will treat compliance with accepted accounting principles as prima facie evidence that the financial statements are true and fair, and deviations from accepted principles will be prima facie evidence that they are not true and fair.

These presumptions will either be strengthened or weakened by the extent to which the SSAP is accepted and applied in practice.

A SSAP has no direct legal effect, but it will have an indirect effect on the content the courts give to the "true and fair" concept.-- The fact that Accounting Standards can change over time does not alter the effect they have on the true and fair view.

The concept of true and fair is dynamic; its content changes but its meaning remains the same.In my view it is a short step from the existence of a code of practice to the establishment of a rule of law that information which is handled in accordance with the code of practice should prima facie be considered as evidence in legal proceedings and conversely that information which was not handled in accordance with the code of practice should prima facie not be considered as evidence in legal proceedings.

This would mirror the approach the courts take regarding the meaning of "true and fair" in the keeping of business records and the consequences of failing to comply with a Statement of Standard Accounting Practice -- failure to comply with an SSAP is prima facie evidence that the business records are not true and fair.In consequence a good litigation tactic would be to ask the opponent to specify with full particularity how each and every piece of computer evidence has been handled to be in accordance with BS 7799 and DISC PD0008.

Failure to respond could reasonably lead to a request to have all the evidence excluded.If and when the Government introduces a similar measure in relation to criminal evidence to replace s 69 of PACE the same tactic would also appear to be appropriate.

This cannot be faulted as a lawyer playing fast and loose with the case.

All that is being done is the court is being asked to give recognition to a British Standard supported throughout government and industry.