Baroness Kidron (CB)

My Lords, it is a privilege to introduce Amendment 207. I thank the noble Lords, Lord Arbuthnot and Lord Clement-Jones, and the right reverend Prelate the Bishop of St Albans, who is unfortunately unwell but wanted me to express his support. I make it clear that, although I may use the Horizon scandal as an example, this amendment is neither focused on nor exclusive to the miscarriage of justice, malevolence and incompetence related to that scandal. It is far broader than that so, when the Minister replies, I really hope that he or she—I am not sure which yet—will not talk about the criminality of the Post Office, as previously, but rather concentrate on the law that contributed to allowing a miscarriage of justice at that scale. That is what this amendment seeks to address. I explained during debates on the DPDI Bill that, since 1999, courts have applied “a common law presumption, in both criminal and civil proceedings, of the proper functioning of machines—that is to say”, the information from the computer can be presumed to be reliable. I went on to say: “In principle, there is a low threshold for rebutting this presumption but, in practice … a person challenging evidence derived from a computer will typically have no””.—[Official Report, 24/4/24; col. GC 573.] knowledge of the circumstance in which the system in question was operated so cannot possibly demonstrate that it failed. As Paul Marshall, the barrister who represented some of the postmasters, explains, this puts the onus on the defendant to explain to the jury the problems they encountered when all they could actually do was point to the shortfalls they had experienced—in the Horizon case, that the cash received did not match the balancing figure on the computer screen. They did not have access to the system or the record of its past failures, and they had no knowledge of what the vulnerabilities were. They only knew that it did not work. The reality is that anyone who knows the first thing about programming or computer science knows that there are bugs in the system. Indeed, any one of us who has agreed to an update for an app or computer software understands that bug fixing is a common aspect of program maintenance. When I discussed this amendment with a computer scientist of some standing, he offered the opinion that there are likely to be 50 bugs per 1,000 lines of code; many complex systems run to tens of millions of lines of code. Perhaps the most convincing thing of all is looking at software contracts. For the past 20 years at least, a contract is likely to contain words to this effect: “No warranty is provided that the operation of the software will be uninterrupted or error free, or that all software errors will be corrected”. This same clause applies in contracts when we say yes to a new Apple upgrade when we sign a EULA—an end-user licence agreement. In plain English, for two decades at least, those who provide software have insisted that computer information is not to be considered reliable. That is written into their commercial agreements, so the fact that computer information is not reliable is agreed by those who know about computer information.