A recent decision of the Court of Appeal (Criminal Division) in R v AEB and others [2024] EWCA Crim 1320 has clarified when computer-generated data will become hearsay evidence.
This decision is a welcome development in an area of law that can become complex, particularly in prosecutions for financial crimes. Computer-generated data often plays a key role in such cases and the question commonly arises as to whether data is “real evidence”, which lies outside the scope of the hearsay rules, or “hearsay evidence” which is, by default, inadmissible in a criminal trial.
This article begins with a brief refresher on the boundary between real evidence and hearsay evidence in the context of computer data, before considering the decision in R v AEB and others and its implications.
Real evidence or a hearsay statement?
“Hearsay evidence” is any statement made by a person outside of court proceedings which is relied on for the truth of its contents.[1] Such evidence is, by default, inadmissible in criminal trials. There are many reasons for this, for example: the fact-finder cannot usually assess the demeanour of the person making the statement, the statement is usually not made under oath, and the reliability of the statement is not usually able to be challenged under cross-examination.
However, evidence that may initially appear to be hearsay evidence may not, on closer inspection, be hearsay evidence at all. For example, raw data that is recorded and produced by a computer or machine, without human intervention, is not “a representation of fact or opinion made by a person”, and so it is not a “statement” that could qualify as hearsay evidence.[2] Such evidence is considered “real evidence”. The Court of Appeal clarified this in R v Spiby, where it held that the hearsay provisions only applied to evidence that had “passed through the human mind”.[3]
The decision in R v AEB and others [2024] EWCA Crim 1320
R v AEB and others involved a prosecution against multiple defendants for money laundering. It was alleged that the defendants had used the proceeds of frauds against a number of banks to purchase Apple gift cards. Those gift cards were then used to purchase Apple products, which were then on-sold or returned to shops and exchanged for other gift cards.
A key piece of prosecution evidence was a spreadsheet of data obtained from Apple which identified the bank cards and/or gift cards used to make the relevant purchases. The data had been automatically recorded in Apple’s database when the transactions were carried out, and an Apple employee had produced the spreadsheet by searching in their internal database for information attached to the gift card numbers provided by Police, and extracting that information. The prosecution proposed to admit this evidence at trial without calling a witness from Apple to produce and interpret it.
The defence objected to the admissibility of this spreadsheet on the grounds that it was hearsay, and not admissible under the business records exception for hearsay contained in s 117 of the Criminal Justice Act 2003. The Judge at first instance agreed, finding that while the spreadsheet contained raw data, it was not itself raw data, and so it was hearsay evidence and not “real evidence”. The Judge held that the spreadsheet was not automatically generated, because its content depended on the gift card information selected and provided by the prosecution being input by the Apple employee. The Judge went on to find that there was insufficient evidence on which to conclude that the requirements of the business records exception had been met, and so found the evidence to be inadmissible.
The Court of Appeal disagreed. The Court applied, and expanded on, the reasoning in Spiby to find that a sub-set of raw computer data selected from a wider body of data according to certain parameters (in this case, the relevant Apple gift card information), and extracted in an intelligible format (in this case, a spreadsheet), is still raw data. The mere process of search, selection, and extraction by a human did not transform the raw data into a hearsay statement by the intervention of a human mind. As the Court succinctly stated: “Raw data which is merely selected and extracted from a larger body of raw data is still the raw data.”
In this case, the Apple employees had confirmed that the data had been recorded in the internal database automatically, and that there was no human intervention in the creation or manipulation of the data. In those circumstances, the Court held that the data in the spreadsheet remained “real evidence” and therefore outside the scope of the hearsay rules.
Key takeaways
Prosecutions for financial crimes often involve the use of selected computer-generated data that needs to be presented in a way that a fact-finder (a Judge or jury) can interpret and understand. This decision of the Court of Appeal in R v AEB and others helpfully clarifies that the human process of selecting which data is relevant, and extracting that data in an intelligible format, does not transform that data into a hearsay statement. Accordingly, such data can be admitted at trial without calling the person who extracted the data as a witness, and without recourse to the hearsay provisions. However, it will be important to obtain sufficient evidence from the data extractor to show that the process of search, selection, and extraction did not involve human intervention in the form of creation or manipulation of that data.
Each case will, of course, turn on its own facts. Had the spreadsheet in R v AEB and others been instead produced by the Apple employee reviewing the raw data and manually inputting that information into a spreadsheet, or had the spreadsheet contained the employee’s interpretation of the data, the spreadsheet would have contained information that had “passed through a human mind”, and as such would be hearsay evidence that needed to satisfy the requirements of, for example, the s 117 business records exception.
Edmonds Marshall McMahon are market-leaders in the private prosecution of fraud and financial crime, and we have extensive experience in navigating the complexities of the rules of evidence in criminal trials. If you have been the victim of financial crime, we can help.
[1] Criminal Justice Act 2003, ss 114(1), 115.
[2] Criminal Justice Act, s 115(2).
[3] R v Spiby (1990) 91 Cr App R 186; applied in R v AEB and others [2024] EWCA Crim 1320.
