Automated and Electric Vehicles Bill

Written evidence submitted by Stephen Mason (AEVB 23)

Dear Sir or Madam,

I am a Barrister and joint editor of the pioneering practitioner textbook Electronic Evidence (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2017). The first edition was published in 2007 and subsequent editions in 2010 and 2012. I was the sole editor until the 4th edition when I invited Professor Seng to join me. I also founded the open source journal Digital Evidence and Electronic Signature Law Review in 2004, which is hosted by the Institute of Advanced Legal Studies.

In 2016, I developed a proposed Convention on Electronic Evidence, which was published in the 2016 issue of the Digital Evidence and Electronic Signature Law Review: http://journals.sas.ac.uk/deeslr/article/view/2321

I put forward this submission on my own behalf.

I propose the following amendments:

Clause 2(1)(a) to read:

(a) an accident is caused by an automated vehicle when driven by software,

Clause 2(2)(a) to read:

(a) an accident is caused by an automated vehicle when driven by software,

Clause 4(1)(b) deals with a failure to install safety-critical software, but does not make clear that the failure to install such software will not necessarily have been the cause of any accident. For this reason, I propose the following amendment to Clause 4(1)(b):

(b) a failure to install safety-critical updates that the insured person knows, or ought reasonably to know, that safety-critical software would have been relevant to establish causation in the particular circumstances of the accident.

Once legal proceedings begin, two significant problems arise if circumstances where the insurer and motor vehicle manufacturer both claim that the cause of the accident was the result of the driver's actions, and not the software controlling the vehicle.

(1) Civil Proceedings - Disclosure

The disclosure of relevant evidence between the parties is governed by Civil Procedure Rule Part 31. Part 31.6 sets out standard disclosure, which requires a party to disclose only–

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

The significant problem faced by many individuals when initiating civil legal proceedings and when up against a commercial entity, is demonstrating to a judge that they should have sight of relevant software code to permit an expert witness to assess the state of the code. Judges often refuse to permit the software code to be released on the basis that the code is proprietary and confidential. This creates a serious handicap to the litigant and fails the hurdle of providing justice as between the parties. As a result, there is a significant imbalance between the litigant and powerful corporations.

This is illustrated by the Bookout case from the United States of America, which has similar (but not identical) rules regarding disclosure between the parties in England and Wales, and where litigants have the same problems of disclosure as they do in the jurisdictions of the United Kingdom. This case is an example where software code in motor vehicles caused the death and injury of people travelling in a motor vehicle. What was unusual in this case, is that a judge ordered Toyota to deliver up the software code to the litigants so that it could be independently assessed. Toyota had given a number of differing explanations for the death and injury that were not compatible with the facts as established by the members of the jury. Full details of this case are set out in Chapter 6 of Electronic Evidence (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2017), which is an open source text and is available as a free download in pdf form from http://ials.sas.ac.uk/digital/humanities-digital-library/observing-law-ials-open-book-service-law/electronic-evidence.

It is recommended that consideration be given to adding a clause (for which see below) to Part 3 of the Bill.

(2) Burden of Proof and Judicial Notice - the presumption that computers are reliable

(a) Presumption of reliability

In 1997, the Law Society determined (Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997), 13.13), in the absence of any evidence of the veracity of the decision, that 'In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time.' This presumption includes computers and computer-like devices.

Since this date, judges in civil and criminal proceedings have accepted this presumption. No judge in any jurisdiction has set out what is meant by 'in order' relating to computers and computer-like devices. The presumption can be challenged, but for reasons set out in detail in Chapter 6 of Electronic Evidence, it is incredibly difficult to challenge software code in the possession of the other party to legal proceedings, or where software code is owned and controlled by a third party or third parties outside the control of both all the parties. A significant number of people have been killed and injured as a direct result of software code, in aircraft, medical devices and motor vehicles, to name but a few examples. For more detailed information, see Chapter 6 of Electronic Evidence. Given that the government is to permit motor vehicles manufacturers to include software code in their vehicles that is supposed to be capable of controlling the vehicle without the aid of a human driver, it will be incumbent on the manufacturer to prove the software code did not cause the accident. In this respect, it is suggested that this presumption formulated by the Law commission be removed in its entirety, and if Parliament is not willing to overturn this presumption, for it to be removed in relation to autonomous motor vehicles.

(b) Judicial Notice

For good reasons, judges will take notice, in the words of Brett JA 'of that which is the common knowledge of the great majority of mankind and of the greater majority of men of business.’ R v Aspinall (1876) 3 QBD 48, 61 – 62. The aims are: to expedite the hearing of a case where obvious facts do not need proving; to promote uniformity in judicial decision making, and to prevent the possibility of a decision which is demonstrably erroneous or false. (Electronic Evidence, 6.10).

The significant problem of judicial knowledge relating to software code is that the number of ordinary people with knowledge of software code is unknown - and the only point that can be made in relation to such knowledge is that the vast majority of people are aware that software code fails.

To prevent judges from permitting motor vehicle manufacturers to take advantage of judicial notice or the presumption that computers (that is, software code) are reliable, it is suggested that the following additional clause be inserted in Part 3:

Legal proceedings and determination of causation

In determining causation, the following is to be taken into account-

(i) the burden of proof is on the manufacturer of the vehicle to prove the software controlling the vehicle at the material time was not at fault, and
(ii) no presumption of reliability is to operate in favour of the manufacturer, and
(iii) the motor manufacturer is to provide the relevant software together with any relevant design documents relating to the date of the accident to the injured party under any such order of the court as may be considered, to include, but not limited to conditions of,
(a) confidentiality, and
(b) security
of the relevant software.

Sincerely,
Stephen Mason

Free books:

Electronic Evidence (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2017) http://stephenmason.co.uk/books/electronic-evidence

Electronic Signatures in Law (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2016) http://stephenmason.co.uk/books/electronic-signatures-law

Free journal:

Digital Evidence and Electronic Signature Law Review http://journals.sas.ac.uk/deeslr/ (also available in the LexisNexis and HeinOnline electronic databases)

http://stephenmason.co.uk/

November 2017