Legal Images Initiative - 30 years of digital difference!
It’s difficult to imagine how we take ‘Computer Generated Evidence’ so utterly for granted. Before the 1990s the simplest of online business applications were commercially impossible; operational dead-ends unable to benefit from the emerging technologies of the time. Dead ends not for reasons of technology, more for the lack of accepting data from applications by legal professionals and the businesses they advised. Anticipating accusations of lawyer bashing, at the time there was something of a perfect storm. A storm driven by lack of knowledge, minimal understanding of courtroom practice, vested interests, and a wider resistance to change. Bluntly, today, our almost paperless world would not exist without evidential trust!
When members of the Society for Computers and Law began promoting change in the early 1990’s, this was a critical commitment to a radically different perspective around technology. No more ‘hear-say’ rules for data. Hear-say meant a witness must have direct knowledge of something they could be cross-examined (questioned) about. At the time, application data was admissible/usable only if a systems operator (witness) had worked with that data in some fashion.
1988 saw barrister Stephen Castell first recognise hear-say electronic challenge in his Verdict Report, taking a further five years for UK government to engage with this[i]. In parallel a few members of the judiciary saw the benefits of paper digitisation, for case management, if not for the evidence itself. Leading to a pilot in the Court of the Official Referee adjudicating damages in a commercial dispute around 1990. ?Marten Walsh Cherer as court reporters constructed a pilot where large and heavy screens were used in the courtroom. The servers also in the courtroom, handling scanned images of the paper ‘bundles’ dominating the hearing process. The benefits of easier traipsing through bundleswhich better maintained the flow of arguments became apparent; as did the necessity for robust security of such systems in the future. As a time-line, we are now at the beginning of the optical disk area.
What came next??? The Legal Images Initiative (LII) followed as a mixed commercial, legal and United Kingdom Government initiative from 1991 to 1995. LII investigated why legal professionals and corporates were at best reluctant towards, and predominately rejected, Computer-Generated Evidence (CGE).
The initiative brought together various stakeholders, mapping their issues, motivations, and concerns to construct new learning and best practices for use by businesses. The LII team foresaw how the prevailing legal practices rendered CGE unusable for most online purposes.
The aim was such that courts could better rely upon electronic evidence in a hearing or criminal prosecution, minimsing the continuous and distracting arguments of probity and value. Pre-case hearings to agree on evidence and value, were much simplified and transparent as a result.
The outcome was initially a code of practice leading to a British Standard 10008 focussed on the digitisation of paper originals and microfilm. The Initiative spawned an international focus towards this topic, establishing rules of thumb and best practices for business, lawyers, and the courts.
Practically, this helped establish digital evidence in the public eye as in January 1998, Lord Saville of Newdigate was appointed to chair the second Bloody Sunday Inquiry. A public inquiry commissioned by Prime Minister Tony Blair into the Bloody Sunday incident in 1972 in Derry, Northern Ireland.
Who took part? The Legal Images Initiative gathered support from interested organisations and individuals, ultimately across the globe. At the outset the key people were:
Why the initiative? - Simply, without a person to verify an exact item of evidence, it could only be treated as hear-say evidence and of lesser evidential value.? Without such an acceptance generally, the wider computerisation of public administration and commercial life, would have slowed by decades. Printed paper would prevail and remain witness dependent.
What drove the initiative? In 1975 the Wilson Government as the National Enterprise Board (NEB), funded tech start-ups, most eventually failing in their own right.? For example, Inmos and its transputer when acquired by an embryonic Intel, went on to create the mass microchip and graphics industry we have today.? Yet these truly bleeding-edge technologies did not create issues of CGE, as they were fundamental technologies not solutions to business need – software! With start-up tech proving politically problematic, a national strategy evolved towards a more pragmatic operational problem solving. This was to improve national competitiveness by both producing and using wholly paper-less systems, though no one truly envisioned what our world decades later would look like. With the arrival of the Thatcher Government in 1981, the NEB merged with the National Research Development Corporation to create the British Technology Group. Today we can see BTG was more driven politically towards what we know as digital today.
Now we have NEB/BTG moving forward with NEXOS[ii] that copied IBM’s business model of buying in tech to go along with its home-grown product. A programme involving the now long-past Logica VTS, Muirheads[iii], UDS, Japanese Ricoh, US Delphi corporation, and others. This focus on paper-less is why the whole topic of CGE came together under the banner of scanning physical records and microfilm. The hope was “solve for one tech; and solve for all the techs”. Hindsight shows that was a reasonable assumption to make.
In 1991 the UK Government’s Emerging Technology programme started, to promote and develop new technologies to improve public services, again heavily focussed on scanned images. The Major Government[iv] had softened the previous Thatcher Government’s approach[v] enabling the public sector to be more self-determining in style, opening the door for UK government administration as we know it today. Retrospectively, this was a halcyon period for UK public sector change as true champions for change emerged in the public sector. Yet through all of this, adoption was inhibited by the widespread mis-conceptions of intangible evidence on a computer hard disk being considered only as hearsay evidence.
Lawyers, corporate experts, and company secretaries simply lacked experience of how legal admissibility worked in practice. Potentially, a failure to establish good practices and understanding around legal admissibility, was a critical block to commercial and administrative development in the UK, and around the world.
What was the outcome? -? From the simplest of beginnings, over the active three years or so of its life, the Initiative seeded a broad UK and international effort to adapt practices and legislation, primarily in the English legal system jurisdictions.
This established simplistic admissibility guidelines for judges, drove politicians to take notice, corporates to rethink their technology strategies, new suppliers to emerge, national archives to rethink long-term preservation, and began a more joined up learning for the legal profession and business.? In turn leading to changes in how tech and admissibility was taught in law schools. Practically, this initiated British Standards Institute (BSI) with IDT/1/4 ?for records with evidential value. The code of practice morphing into a first version of BS10008[vi] on the digitisation of physical papers. ?
While the Initiative focussed on Anglo/American legal commercial doctrines, wider Queen Mary’s research investigated European presidential decree.? The outcome was broadly there were no tangible-legal barriers to using CGE, the barriers were perceptual, experiential, and the balancing of eviedntial weight/trust. Ironically, the barriers were not truly legal they were educational.
From 1996 there was a much-publicised route to widely adopting CGE, driven by HM Treasury and the Treasury Solicitors, MoD, National Archives in the UK and USA, and the judiciary; all seeking methods of gauging trust for evidence taken from computers. While recognising that anything was possible to fabricate from such systems!? Accepting data from systems in the ‘normal course of business’, was the first the first guiding principle to emerge.
We should remember that this major commercial and governmental issue, was overcome by a collective effort to improve the performance of business, government administration. As such to enable the future use of personal technologies as well as the major internal systems of the time. This group had the vision and the knowledge to make it happen, the results of which we take for granted in today’s digital world.
What had been unbreakable precedent and practice before 1990, transformed into a need for better understanding of process and improved legal education. However, the participation of the judiciary was probably the most significant factor in reaching the tipping point for change. Ultimately, no barrister or solicitor wanted to appear ignorant of Computer-Generated Evidence or document images in front of a judge!
Digital signatures rarely contain a physical signature, yet we now trust the output of software to represent our state of mind at a given moment in time. Machines as tin, plastic, and software, now daily enforce our decisions, describe the very DNA of our bodies, guide treatment of our most severe ailments, and speedily count the votes in our democracies (famously unless there is chaff involved though that’s not truly electronic). All such outputs now used in court to a greater or lesser evidential value, with minimal concern.
Why did LII work? -? The scope for LII was imprecise, primarily due to the lack of understanding of business leaders and lawyers at the time. The Initiative worked because it was not prescriptive and allowed the broadest of discussions on the challenges faced, which quickly shifted from a UK centric view to a more international perspective.
The Initiatives’ research assessed the various factors affecting admissibility on practice and case law such as existed at the time. It looked at enabling of opportunities for modernisation if evidential value was proven without the convolutions of Hear-say evidence being involved. Surprisingly, the judiciary were open to the subject and championed the evidential standing of such data.
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While focussed on the scanning of physical papers and correspondence, the thinking and practices ultimately influenced the microfilm and computer industries. When combined with considerable transformation efforts by BSI, British Computer Society, Society for Computers and Law, and the CCTA, this profoundly changed attitudes and overcame the often-fallacious arguments of lawyers and company secretaries. The tables turned and technology users could overcome the business case objections too often voiced before the Initiative and the standard.
It opened the door for technology to become centre stage for how we could operate in the real world. By 2000 this was embedded with law makers in North American and European contexts, who had woken to the possibilities of computers directly interacting with the citizen bypassing the paper stages. What we now call digital.
The Initiative’s members work cascaded out into central and local government and defence. The UK Records Management Society helped focus on the British Standard, followed later the American Association of Records Managers and Administrators (ARMA). It influenced European thinking with its fundamentally different approach to legal practice, as the understanding spread, primarily through the EU DLM Forum.
With sections of the legal profession and microfilm suppliers promulgating at best salesman's licence, and worst complete falsehoods, this had stagnated discussion of the subject. Yet, without the convergence of various factors in the UK, its highly likely this state would have continued for the rest of the 1990's. The exploitation of universal computing as we today term 'digital' simply could not have happened, hide-bound by the need for physical items to convey agreement or commitment.
What of the future? 30 years on we take for granted that in most regions around the world, information from computer systems is used reliably as evidence in legal proceedings. Similarly, for demonstrating statutory compliance with law and regulation. Today we have a plethora of legal instruments and case law that reflect computer evidence is no more or less valid than any other form of evidence.
The challenge of the late 1980’s was the universal lack of acceptance of computer-Generated Evidence (CGE), by courts, lawyers, government administration and businesses. Crudely, if it wasn’t signed physically, it wasn't legal? If stored on an optical (compact) disk, did it have any evidential value ten or a hundred years later? There were many other questions to answer for example: the English law allows for good reason multiple originals, yet was obsessed with having the original in court as evidence.
Today we have emerging challenges with Artificial Intelligence as in what is it? what could it do? and what is its evidence worth? My instinct tells me it will be used as a form of expert witness evidence – open to discussion on that. As for images as behind this article, will we have encrypted originals with some form of Block-Chain coding to signal interference and assure trusted content?
What is clear is that we automatically think ahead now and not rely on history; we can learn from it not be limited by it!
What about legal admissibility? - The result was clear evidence that the pragmatics of the English law system, could accept any evidence the legal parties chose to. Usually agreed in pre hearing disclosure sessions. While harder in criminal cases due to the stricter nature of proving evidential value, it was still admissible.
What emerged was that evidential value was “established by engendering trust in that evidence”.
This meant we had evidential layers to consider:
Data could be evidentially valid, yet be in-admissible for reasons nothing to do with being CGE.
What had emerged were some rules of thumb for all professionals to consider:
Online References
[i] Yet Verdict gained no traction as it offered limited ideation for solving this problem.
Trustee on Board of Trustees at Norwich Puppet Theatre/Treasurer and Trustee Friends of Holt Hall
9 个月Well done Ken
Marketing and AI consultant & trainer. 3,000 clients. 30 years experience.
11 个月This is an interesting article, Ken and thank you for sharing it.